Six Judgments of the Judicial Committee of the Privy Council in Ecclesiastical Cases, 1850–1872

Gorham v. Bishop of Exeter (1850)

The reverend GEORGE CORNELIUS 1 .

GORHAM, Clbek | Appellant;

AND

The right REVEREND the liORDT

BISHOP OF EXETER (DR. PHIL- ^Respondent* POTTS) . . . .^ . .]

On Appeal from the Arches Court of Canteriury.

It is not for the Court to decide whether opinions are theologically sound or unsound, but -whether such opinions are contrary or repugnant to the doctrines, which the Church of England, by its Articles, Formularies, and Rubrics, requires to be held by its Ministers.

The Court will apply to the construction of the Articles and Liturgy the same rules which have been long established, and are by Law applicable to the construction of all written instruments, assisted only by the consideration of such rational or historical facts, as may be necessary for the understanding of the subject matter to which the instruments relate, and the meaning of the words employed.

In all cases in which the Articles, considered as a test, admit of different interpretations : Held, that any sense of which the words fairly admit may be allowed, if that sense be not contradictory to something which the Church has elsewhere allowed or requii'ed ; and if there be any doctrine on which the Articles are silent or ambiguously expressed, so as to be capable of two

* Present: Lord Langdale, M.R. ; Lord Campbell ; Sir James Parke (iBaron of tiae Exchequer) ; Dr. Lushington ; Sir J. L. Knight Bruce (V.C.) ; Mr. T. Pembertou Leigh ; also, on special summons, the Archbishop of Canterbury (Dr. Sumner) ; the Archbishop of York (Dr. Musgrave) ; the Bishop of London (Dr. Blomfield).

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meanings : Held, that it was intended to leave that doctrine to private judgment, unless the Rubrics and Formularies clearly and distinctly decide it.

. Devotional exercises and services cannot be evidence of faith or of doctrine without reference to the distinct declarations of ^pctrine .in the Articles ; and where devotional expressions iuTolving assertions occur in a service they must not, as of course, be taken to have an absolute and unconditional sense; apart from a careful consideration of the nature of the subject and the true doctrine applicable to it.

The Court has no jurisdiction or authority to settle matters of faith, or to determine what ought in any particular to be the doctrine of the Church oi. England ; its duty extends only to the consideration of that which is by Law established to be the doctrine of the Church of England, upon the true and legal construction of her Articles and Formularies.

A Clerk refused institution by a Bishop on the ground of unfitness, by reason of his holding, as alleged, doctrines contrary to the true Christian Faith, and the doctrines contained in the Articles and Formularies of the United Church of England and Irelamd : Held, that it is not contrary or repugnant to the declared doctrine of the Church of England, as by Law established, to hold, that the grace of regeneration does not so necessarily accompany the act of Baptism that regeneration invariably takes place in Baptism ; that the grace may be granted before, in, or after Baptism ; that Baptism is an effectual sign of grace, by which God works invisibily in us, but only in such as wort]|ily receive it — ^that in them alone it has a wholesome effect ; and that, without reference to the qualification of the recipient, it is not in itself an effectual sign of grace ; and that in no case is regeneration in Baptism unconditional.

Judgment of the Court of the Arches reversed, and order made for institution of the Clerk.-

Dec. 11, This case was an Appeal from the Arches Court of Ga/n- 1849. terlury in a suit brought by the Appellant against the

statement. Bishop of Exeter, for refasing him itastitutien to the living of Sramypford SpeJce, to which he had been presented by Lord Chancellor Oottenham.

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The Appellant, the Reverend George Oornelms Oorham, ex-1'ellow of Queen's College, Cambridge, had been ordained in 1812, and had held the living of St. Just-in- Penwith, in the Diocese of Hxeter, since 1846. In June 1847 the Lord Chancellor, on behalf of her Majesty, having offered him the living of Brampford Bpelce, in the same Diocese, he forwarded to the Bishop of Exeter, for his counter-signature, the testimonial required in such oases, signed by three beneficed clergymen. Instead of the usual attestation that the three subscribing clergymen were beneficed in his Diocese and worthy of credit, the Bishop wrote in the m.argin of the document the following words : —

' The clergymen who have subscribed this testimonial are highly respectable ; but, as I consider the Bishop's counter-signature of such a document, if it be unaccompanied by any remark, as implying his own belief that the party to whom, it relates " has not held, written, or taught anything contrary to the doctrine or discipline of the United Church of Englamd and Ireland ;" and as my own experience unfortunately attests that the Rev. George 0. Gorham did, in the course of last year, in correspondence with myself, hold, write, and maintain what is contrary to the discipline of the said Church, and as what he farther wrote makes me apprehend that he holds also what is contrary to its doctrine, I cannot conscientiously countersign this testimonial.'

'H. EXETER.'

' August 29, 1847.'

The Bishop, on Mr. Gorham's remonstrance, having refused to withdraw the words written on the testimonial, Mr. Gorham wrote and explained the circumstances to the Lord Chancellor, who thereupon ordered the presentation to be made out, and wrote to the Bishop of Exeter, October 11, 1847, to state that he had signed the Fiat for Mr. Gorham.' s presentation, it appearing to him that ' the object of the Bishop's counter-signature is only to give validity to the testimonials of the clergyman ; and that whatever

GOBHAM V.

Bishop off

£X£TEB.

Statement.

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1849. power the Law may give, to tte Bishop upon the gronnd of

"• not precede presentation.' The presentation was accord-

ExETEE. ingly made out, and was issued under the Great Seal

statement, on Novemhsr 2.

On Nov. 6, Mr. Gorham applied by letter to the Bishop for institution, and after some correspondence the Bishop, on Nov. 13, intimated to Mr. Gorham that before institution he felt it to be his duty to ascertain by examination whether he was sound in doctrine. Mr. Gorham having assented to this course, the examination commenced at Bishopstowe on Dec. 17, 1847, and continued at intervals to March 11, 1848, notwithstanding protests on the part of Mr. Gorham for its minute and inquisitorial Examination character. In the course of the examination 149 questions Gorhaim. were proposed by the Bishop and answered by Mr. Gorham, aU of which were reduced to writing, pablished by Mr. Gorham, and acknowledged as a true account by the Bishop, who incorporated the book in his Act on Petition to the Court of the Arches.

The passages which are material for the purposes of this proceeding are contained in Mr. Gorham' s answers to Questions v., VI., and VII. They are as foUows : —

Question V. Does oxir Church hold, and do you hold, that every infant baptised by a lawful Minister with water in the name of the Father, and of the Son, and of the Holy Ghost, is made by God in such Baptism a member of Christ, the child of God, and an inheritor of the kingdom . of heaven ?

Questimi VI. Does our Church hold, and do you hold, that such children by the laver of regeneration in Baptism, are received into the number of the children of God, and heirs of everlasting life ?

Question VH. Does our Church hold, and do you hold, that all infants so baptised are bom again of water, and of the Holy Ghost ?

Answer. As these three questions aU imply the same description of answer, I will discuss them together.

And generally I reply that these propositions, being

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stated in the precise words of the Ritual Services, or of 1849.

the Catechism, undoubtedly must be held by every honest G-oBalsr

member of the Church to ' contain in them nothinsr con- „ *■.. ,

o Bishop of

trary to the Word of God, or to sound doctrine, or which bxeter.

a godly man may not with a good conscience use and ,sta tement._

submit to, or which is not fairly defensible, ... if it

shall be allowed such just and favourable construction as in

common equity ought to be allowed to all human writings,

especially such as are set forth by authority.' — (Preface to

the Book of Common Prayer.)

Now the 'just and favourable construction' of passages Bxamination like these (occurring in Services intended for popular use), ham. which, taken in their naked verbality, might appear to contradict the clearest' statements of Scripture, and of the Church herself, must be sought, chiefly (I.), by bringing them in , juxtaposition with the precise and dogmatical teaching of the Church in her explicit standard of doctrine, the Thirty-Nine Articles ; in the next place (II.) by comparing the various parts of her Formularies with each other ; and collaterally (III.) by ascertaining thfe views of those by whom her Services were reformed and the Articles sanction'ed.

The real point involved in these questions is the efficacy of the Sacrament of Baptism, not merely in infants, but in adults ; and that question cannot be fairly dissevered from the efficacy of the other Sacrament — ^that of the Lord's Supper.

I. The Articles distinctly and with severe precision lay down the doctrine for both Sacraments ; which is this : — That not right administration merely, but worthy reception, is essential to their becoming ' effectual signs of grace.' ' In such only as worthily receive the same they have a wholesome effect or operation.' (Article 25.) And ' the grace of God's gifts ' is said to be conferred only on such as ' by faith and rightly do receive' them. (Article 31.) The doctrine thus generally stated for both kinds applies to Baptism of course ; and of that Sacrament it is eo nomine declared, ' that they that receive Baptism rightly ' (that is, not merely by lawful administration, but by worthy re-^

QOEHAM

Bishop of

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ception) 'are grafted into the Chtu-ck ; the promises of forgiveness of sin, and of our adoption to be the sons of God by the Holy Ghost, are visibly signed and sealed ; faith is confirmed, and grace increased by virtue of prayer unto statement, q,, (g 37 ) jj-j, distinction is made between adults and infants in this Article, though the case of the latter was expressly in the mind of its framers, as appears by the charitable declaration at its close. ' The Baptism of young children is in any wise to be retained in the Church, as most agreeable with the institution of Christ.' Tet, once more, the three remarkable expressions above cited are combined in Article 28, in which the doctrine of the Church is luminously set forth, as in a sunbeam, that none have a beneficial communion of the Body and Blood of Christ, but ' such as rightly, worthily, and with faith receive the same.' See also Article 29 : ' The wicked and such as be void of a lively faith, although they do carnally and visibly press with their teeth (as St. Augustine saith), the Sacrament of the Body and Blood of Christ, yet in no wise are they partakers of Christ ; but rather to their condemnation do they eat and drink the sign or sacrament of so great a thing.'

Such — according to the authoritative teaching of the Articles, (those grave and formal declarations of Divine Truth accepted by both Houses of Convocation), by which the language of all Formularies and Services, as well as all expositions and examinations of their import, must be rigorously tested, as their standard, — such is the doctrine of the Church on the ej(ficacy of both Sacraments, and, therefore, of Baptism. Where there is no worthy reception there is no bestow/nent of grace.

Examinatibti II. The Formularies teach the same doctrine when ham. ' fairly construed, though sometimes in a form less definite,

(a.) In the Catechism ' the inward and spiritual grace ' is carefully distinguished from the ' outward and visible sign,' which is its token, its pledge, and its manifestation, when ' rightly received.' The conditions of repentance and faith are expressly required of persons to be

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baptised, even of infants, who must enter into these stipulations by their representatives, and who, ' when they come of age, are bound to perform ' the covenants which their sponsors made on their behalf.

(6) In the Baptismal Services (for adults as well as infants, for we are not at Kberty to sever the two in this argument) the benefits of the Sacrament are, in a similar way, suspended on its worthy reception. ' Faith ' and ' repentance ' are declared by the adult in his own person, and are stipulated by the infant through its sponsors, as dispositions which exist, or shall hereafter exist, in the mind of the candidate. The whole service, therefore, is constructed on the assumption that these promises are sincere, on the hypothesis that the requirements have been, or shall be performed. In this charitable hope the Formularies of the Church affirm that the subject of Baptism is ' a member of Christ, the child of God, and an inheritor of the kingdom of heaven!' (Question V.) He was made such, by solemn dedication with the prayers of the Church, by open profession with his own lips, or by the stipulations of his sponsors (to be hereafter, possibly as soon as the infant faculties are sufficiently developed, or at all events in riper years, fulfilled by himself) ; and he was also made such by the covenant of God, certified by His own seal, that on His part nothing should be wanting to give His adopted child the full efiect of these blessings. This interpretation of the affirmations in the Baptismal Ritual is confirmed by the language of one of the Homilies, which reminds us that by ' holy promises, with calh'ng the name of God to witness, we be made lively members of Christ, when we profess His religion, receiving the Sacrament of Baptism.' (Homily on Swearing, part i.) It is in the same prospective confidence in the sincere performance by infants of those engagements by which they were bound by their sureties (as their-ripening capacities shall enable them to fulfil those pledges) that the Church declares (but always with an implied conditional reservation, if these promises be not fulfilled, that the blessing is not

GORIiAW V.

Bishop op

statement.

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GOKHAM

Bishop of Exeter.

conferred), ttat ' by the laver of regeneration in Baptism they are received into the number of the children of God, and heirs of everlasting life.' (Question VI.) In the same strain of charitable hypothesis it is affirmed that infants ' so baptised'- — namely, not accprding to the institution of Christ, but with ' the stipulation (the answer), of a good conscience towards God' — are ' bom again of water and of the Holy Ghost.' (Question VII.) It being impossible that such dispositions and. fruits should exist, except when the Holy Ghost has imparted a new nature, which He may do before Baptism, in Baptism, or after Baptism, ' as He listeth.'

That the Church did not intend her language to be construed absolutely, and unconditionally, may appear from a single instance.

In the Office for Private Baptism, the Church makes two declarations as absolute as mere verbality can make them.

(1.) She makes a verbally absolute statement of the regeneration of the child in the thanksgiving, ' We yield Thee hearty thanks, most merciful Father, that it hath pleased Thee to regenerate this infant by Thy Holy Spirit,' etc.

(2.) She makes an equally unconditional assertion as to the future salvation of the infant in the exhortation, ' Beloved, ye hear,' etc.; where we are told, ' not to doubt, but earnestly believe' that result to be certain — namely, ' that He will give unto him the blessing of eternal life, and make him partaker of His everlasting kingdom.'

Nevertheless, in the concluding petition, ' We yield Thee,' etc., the Church makes that which has been the subject of positive declaration, again, the matter of humble prayer, and therefore only of conditional expectation : — ' Humbly we beseech Thee to grant that .... finally, with the residue of Thy Holy Church, he may be an inheritor of Thine everlasting kingdom.' Thus she clearly ayows that, in this instance, her language of undoubting belief and unhesitating assertion, is to be 'justly construed ' as only conditional, hypothetical, charitable, and hopeful.'

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It is not, therefore, inconsistent with her phraseology, 1849. or, rather, it is fully consonant with her intentions, to cong„ stme her verbally absolute declaration with regard to the 3* regeneration of every infant in the same hypothetical manexbteh. ner ; and this construction, being the only one which will .*''*°°™*- reconcile her Liturgy with her Articles, is that which ia ' common equity,' ought to be allowed, and which in common sene must be adopted.

The Church herself has given this intimation of the Examination J .... ? of Mr. Gor-

mode m which her language is to be construed at the close ham. of the Baptismal Services, where, exhorting both infants (through their sureties) and adults, she reminds them that ' Baptism doth represent unto us our profession, ' and that we who are baptised should die from sin, and rise again unto righteousness ; although ' a death unto sin, and a new birth unto righteousness ' (being the inward grace included in the terms 'regenerate ' and ' bom again '), are effects declared verbally to have taken place in, and by, the Sacrament. An hypothetical meaning and coilditional construction is the only one which renders these parts of the Services consistent with each other, as well as conformable to the express teaching of the Church in her standard of doctrine.

The same conclusion follows from that passage in the Burial Service, in which, in absolute terms, we ' thank God that it hath pleased Him to deliver this our brother out of the miseries of this sinful world ; ' although it is manifest that we cannot definitely pronounce on the future state of every individual, in successive generations, to whom that Service is to be applied ; and although, in a subsequent part of that Service, the Church falls back into the simply charitable declaration, that ' our hope is that this our brother ' rests in Christ.

This construction becomes riveted on these apparently absolute expressions by the fact that, notwithstanding the declaration that baptised persons are ' bom again,' the Church instructs us (in other services) to pray for this very blessing in after life. The Collect for Christmas Day, and that for the Circumcision, are prayers to this effect ;

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1849. tte language of each of these prayers I consider as pro- GobbIm spective — that of the second is so beyond controversy. Bishop op '^^® petition which concludes the first part of the HomUy BxETER. for Whit-Snnday is most distinct on this point, in that statement, prayer, ' Let us give hearty thanks to God .... humbly beseeching Him so to work in our hearts by the power of His Holy Spirit, that we, being regenerate and newly bom again in all goodness, righteousness, sobriety, and truth, may, in the end, be made partakers of everlasting life.' Regeneration, therefore, in Baptism is affirmed absolutely in words, but conditionally in meaning ; it may not have taken place, and is', therefore, to be implored in after years. Bxamination In truth, not Only many expressions in the Liturgical ham.' Services would be misinterpreted, but the language of

Scripture itself might be (as it has been) awfully perverted, if the principle were not allowed that the most absolute terms must be construed sometimes in a symbolical, sometimes in a conditional sense, according to the manifest intention of the person who used them.

What can be more absolute than our Lord's affirmation respecting the bread, ' This is my body ' ? Transubstantiation follows from the exaction (contrary to common sense) of a literal acceptation of these words : as regeneration, by the opus operatum of Baptism, would follow from an exaction (contrary to the doctrine of the Articles) of an unjustly verbal construction of certain affirmations in the Baptismal Service.

We find, in the Apostolic Epistles, absolute declarations respecting the sanctified state of every individual included in the churches to whom they were written (Rom. i. 7 ; 1 Thess. i. 1, 2, 4), though it is manifest that these affirmations must be understood as conditional and charitable assunciptions.

That such is the 'just construction ' of the language of the Rituals, as cited in these three questions, and as prevailing throughout the Baptismal Services, will appear, if we consider with what care those who compiled the Formularies of the Church discriminate between the sacra-

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Bishop of Exeter.

ments, or signs, and the grace, or thing, signified, as perfectly distinct conceptions, as matters separable and often separated. I must illustrate this by both Sacraments, distinctions in kind being needless, and only perplexing the argument. The Catechism logically and most cor- .sta tement. rectly defines a sacrament to be a sign of an inward and spiritual grace. Article 29 calls the mere outward element ' the sacrament, or sign,' clearly distinguished from, and not even (in the case referred to) accompanied by, ' so great & thing ' as the inward grace. In the Communion of the Sick it is declared that the faithful may spiritually ' eat and drink ' the body and blood, though from physical ■weakness we do not receive ' the sacrament,' the elemental sign. The Homilies insist strongly on this distinction. ' St. Augustine ' (Homily on Common Prayer) ' calleth sacraments holy signs ; and, writing of the Baptism of infants, he saith, if sacraments had not a certain similitude of those things whereof they be sacraments, they should be no sacraments at all ; and of this similitude they do for the most part receive the names of the selfsame thing they signify.' And that discourse; which was written specially on this subject, warns us to mark the important difference between 'the outward sacrament and the spiritual thing, the figure and the truth, the shadow and the body.' (Homily on the Sacrament of the Body.) So Cranmer writes, ' In sacraments, saith St. Austin, is to be considered, not what they be, but what they show ; for they be signs of other things, being one thing and signifying another.' (Cranmer on the Lord's Supper, b. iv. Edn. Parker Soc, 1844, p. 221.)

It is true that, by a metonymy, the sign is often used Examination for the thing signified ; and this practice of the early ham. fathers, sometimes adopted in the writings of our Reformers, and in one place in our Catechism (I mean the description of a sacrament as to its ' parts,' whenever the sign and the grace are happily united by the worthy recipient), has led to confusion in the minds of those who do not carefully mark the distinction, and separability, of these two matters. But the meaning of the Church is clear, if a

Bishop of Exeter.

Statement.

Examiuation of Mr. Gorham.

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'just and favourable construction be allowed' (and she! herself claims it) for her expressions.

III. The writings of the Eeformers, candidly examined, throw light on the construction of Church Services. These, of course, I cannot quote at large in an extempore examination. Coverdale (Works, Edn. Parker Soc, pp. 80, 411), Latimer (Ibid., p. 202), Ridley (Ibid., p. 240), Cranmer (Ibid., p. 221 ; Works, Jenkyn's Edn., vol. iii. pp. 49, 121, 624), Hooper (Works, Edn. Parker See, pp. 74, 75), have marked the distinction and the separability of the sacrament, or sign, from! the grace, or the thing signified, in precise and unmistakeable language. Jewel, the great light of that era, gives his judgment, that ' in Baptism, as the one part of that holy mystery is Christ's blood, so is the other part the material water ; neither are these parts joined together in place, but in mystery, and therefore they are oftentimes severed, and the one is received without the other.' (Reply to Harding, p. 285, Edn. 1609.)

Neither Jewel, nor any other expositor, is my standard. I base my doctrines on the 39 Articles ; but the above citation from this eminent Bishop, so well qualified to give' his judgment, expresses generally my view of the Sacrament of Baptism.

Questions XVIII. and XIX., and the answers thereto, are also material.

Qiiesiion XVIII. Has the Church not declared her mind, that infants baptised by a lawful Minister, in the name of the Father, and of the Son, and of the Holy Ghost, do receive the spiritual grace of Baptism, even if they have not entered into the stipulations by their representatives ?

Answer. The Church has declared that, to infants privately baptised, the grace and mercy of Christ is not denied. In this case of emergency I consider that stipulations, though not formally made by sponsors, are made by implication through those who earnestly desire their Baptism, and by the person who administers it, which implied stipulations the Church requires to be formally adopted, as soon as the circumstances will suffer it. This

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case of . ' present exigence ' cannot, therefore, be fairly 1849.

urged as an exception to the requirements of the Church, n^^

In the Catechism the Chnrch' puts the question, ' Why, o-

-^ 7^7 Bishop of

then, are infants baptised, when, bj reason of their tender exetbu.

age, they cannot perform them, (the ' promises ' made by statement.

their sureties), ' without limitation to infants baptised under

any particular circumstances ? ' It is a question stating

-the difB.culty in its broadest and most general character.

Now the answer, which the Church gives, brings us of necessity to one of three conclusions : — , Either (a) the Church intended unworthily to evade the principal dif&culty — namely, the case of infants baptised in emergency, without the formal stipulations, the execution of which is declared in the answer to solve the dif&culty proposed.

Or (6) she intended to impose a charitable silence on her members with regard to so nice and curious a point, shutting up all further search in the promises of God, as generally set forth in Holy Scripture.

Or (c) she intended to embrace that case in her general answer, and to consider that the stipulations were implied under these urgent circumstances (to be hereafter absolutely entered into if more favourable circumstances permitted), though they were not formally given.

The first of these suppositions, of course, I dismiss peremptorily.

The second hypothesis would put an end to all further enquiry into the subject.

The third conclusion therefore, which I adopt, is the only solution which is possible, if I am required to declare my view of the meaning of the Church.

Question XIX. Does the Church hold, and do you hold, Exammation that infants so baptised are regenerated, independently of the stipulations made by their representatives, or by any others for them ?

Answer. If such infants die before they commit ' actual sin,' the Church holds, and I hold, that they are 'undoubtedly saved;' and, therefore, they must have been regenerated by an act of grace prevenient to their Baptism,

of Mr. Gor- liam.

GORHAM V.

Bishop of

statement.

Result of Examination.

Proceedings in Court of the Axches.

Act on Petition.

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in order to make them worthy recipients of that Sacrament. This case is ruled by the Church — I mean, it is ruled that they were actually regenerated, and are undoubtedly saved.

But if the infant Urea to a period in which it can commit ' actual sin,' the declaration of regeneration must be construed according to ' the hypothetical principle, which I have stated in my replies to Questions V., VI., and VII.

That part of this question which relates to sponsorship, in these cases, I have replied to in the answer to Question XVIII., so far as the mind of the Church can be ascer- tamed.

The examination having concluded, Mr. Oorham. was apprised on March 11, 1848, that the Bishop, having regard to the unsoundness of the doctrines stated by him, felt bound to decline to institute him. Mr. Gorham thereupon had recourse to legal proceedings to compel him, and obtained a monition from the Dean of the Arches, grounded on a Duplex Querela,* monishing the Bishop of lEaeter to institute Mr. Oorham, or to show cause why he should not do so within fifteen days, failing which the Dean of the Arches would proceed to institute Mr. Gorham.

The Bishop's reply is contained in the ' Act on Petition.' This document states that, on Mr. Gorham's presentation, the Bishop proceeded, as he was bound, to examine him, in order to ascertain his fitness, and adds, ' That it appeared to the Bishop, in the course of his examination, that Mr. Gorham, was of unsound doctrine respecting that great and fundamental point the efficacy of the Sacrament of Baptism, inasmuch as he held and persisted in holding that spiritual regeneration is not given or conferred in that holy

* ' Duplex Querela (double querele, or complaint), called improperly double quarrel, is a complaint made by any Clerk or other to the Archbishop of the province agaiiist any inferior ordinary for delaying justice in any cause ecclesiastical ; as to give sentence, or to institute a clerk presented, or such Uke. It seems to be called a cUmhle querele because it is most commonly made both against the judge and against

the party at whose request justice is delayed by the said judge.' Bum's

Eccl. Lav?, vol. ii.

of Mr.

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Sacrament; in particular that infants are not made 1849.

therein members of Christ, and children qf God, contrary goeh^m

to the plain teaching of the Church of Enalcmd in her „ "■ Ai-iix-ii Bishop oif

Articles and JUiturgy, and especially contrary to the divers exbtkh.

offices of Baptism, the office of Confirmation, and the Ca- .statement.^

techism, severally contained in the Book of Common

Prayer, and administration of the Sacraments, and other

rites and ceremonies of the Church, according to the use

of the United Church of England and Ireland.' The Act

on Petition further stated that Mr. Gorham had published

an account of the examination, and, in part supply of proof,

it referred to the said book, brought into the Registry.

The answer of Mr. Gorham, after admitting the book Answer brought in by the Bishop to have been published by him, and that the contents were true and accurate, distinctly and emphatically denied that he at any time maintained unsound doctrines respecting the efficacy of the Sacrament of Baptism, or that he held opinions thereon at variance with the plain teaching of the Church of England in her Articles and Liturgy ; it further denied that he held that infants are not made in Baptism members of Christ and children of God, and alleged that he did not maintain any views whatsoever contrary to the true doctrine of the Church of England, as dogmatically determined in her Articles, familiarly taught in her Catechism, and devotion- ally expressed in her Services, it having been his desire and endeavour throughout his examination to explain the language both of her Articles and Liturgy (in compliance with the express directions of the Church herself), by such 'just and favourable construction' as would secure an entire agreement, not only of each with the others, but of all alike with the plain tenor of Holy Scripture, declared by the Articles to be of paramount and absolute authority.

After a rejoinder from the Bishop, and an affidavit from Mr. Gorham, verifying the statements contained in his answer, the cause came on for hearing before Sir Serhert Jewner Fust, the Dean of the Arches Court, on January 31, and again on February 17 and 27, and on March 1, 3, 6,

16 *' Privy Council Judgments.

Bishop OF ' judgment of the Dean of the Arches was delivered BxKTER. on August 2, 1849. After recapitulating the circumstances statement. jg ggg jjg learned Judge showed that the issue tte cS;*"? narrowed to the question of the efficacy of infant the Arches. Baptism. He declared the Articles to be prima facie the standard of doctrine ; hut held that, if the Articles were silent on any controverted point, the rormularies of the Church must be consulted. As to Baptism, the Articles declared that it is of use only to those that worthily re- cecive it ; but they do not state in what worthy reception consists. But the Formularies declare that a child ' is by Baptism regenerate,' and as this declaration is unconditional in the Service for Private Baptism, it must be taken as unconditional in the Service for Public Baptism. So long as the Articles and Services of the Church are recon- cileable, and not only reconcileable, but necessarily consistent, the learned Judge held that he must construe them together. If a doctrine were laid down in the Baptismal and other Services and in the Rubrics, he must look to that source for his guide, if the Articles were silent on the point, and not indulge in fancy, explaining it by the opinions expressed by private individuals. He accordingly came to the following conclusion : — That, as the doctrine of the Church of JEnglcmd undoubtedly is, that children baptised are regenerated at Baptism, and are undoubtedly saved if they die without committing actual sin, Mr. Gorham has maintained, and does maintain, opinions opposed to that Church of which he professes himself a member and minister ; and, further, that the Bishop had shown sufficient cause why he should not institute Mr. Gm-Jiam to the living of Brampford SpeJce, and that he was entitled to be dismissed, with costs. Appeal to Prom this decree Mr. Gorham having appealed to her

Privy coimj^iajesty in Council, the appeal came on to be heard on December 11, 1849.

Mr. Twrner, Q.C., and Dr. Bayford for the Appellant ; Dr. Adda/ms and Mr. Badeley for the Respondent.

Privy Council Judgments. 17

After argument, judgment was reserved to March 8, 1849. 1850, when the following judgment was read by Gorham

LORD LaNGDALE : — * Bishop of

This is an appeal hy the Reverend George Cornelius Gar- ham against the sentence of the Dean of the Arches Court isso. of GoMterhury in a proceeding called a Duplex Querela, in Committee which the Right Reverend the Lord Bishop of Exeter, at counSh the instance of Mr. Gorham, was called upon to show cause why he had refused to institute Mr. Gorham to the Vicarage of Brampford SpeJce.

The Judge pronounced that the Bishop had shown suflB.- cient cause for his refusal, and thereupon dismissed him from all further observance of justice in the premises, and, moreover, condemned Mr. Gorham in costs.

From this sentence Mr. Gorham appealed to her Majesty in Council. The case was referred by her Majesty to this Committee. It has been fully heard before us ; and, by the direction of her Majesty, the hearing was attended by my Lords the Archbishops of Ganterhit/ry and YorTc and the Bishop of London, who are members of her Majesty's Privy Council. We have the satisfaction of being authorised to state that the Most Reverend Prelates the Archbishops of Canterbury and York, after perusing copies of our judgment, have expressed their approbation thereof. The Right Reverend the Lord Bishop of London does not concur therein.

The facts, so far as it is necessary to state them, are as follows : —

Mr. Gorham being Vicar of St. Just in Pemwith, in the statement ' Diocese of Exeter, on November 2, 1847, was presented by °"=' her Majesty to the Vicarage of Bram,pford Spelce, in the same Diocese, and soon afterwards applied to the Lord Bishop of Exeter for admission and institution to the Vicarage.

The Bishop, on November 13, caused Mr. Gorham to

GORHAM V.

Bishop op Exeter.

Judgment.

Befusal to institnte.

Proceedings in Court of the AroheB.

" Privy Council Judgw,ents.

be informed, that his Lordship felt it his duty to ascertain by examination, whether Mr. OorTicmn was sound in doctrine before he should be instituted to the Vicarage of Brampford Speke.

The examination commenced on December 17, and was continued at very great length for five days in the same month of December, and (after some suspension) for three more days in the following month of March.

The questions proposed by the Bishop related principally to the Sacrament of Baptism, and were very numerous, much varied in form, embracing many points of difficulty, and often referring to the answers given to previous questions.

Mr. Gorham did not at first object to the nature of the examination ; but, during its progress, he at various times remonstrated against the manner in which it was conducted, and the length to which it extended. "We are, however, relieved from the necessity of considering whether he could, or could not, lawfully have declined to ■submit to such a course of examination ; because he did, in fact, answer nearly all the questions, and no complaint is made of his not having answered them all.

The examination being concluded, the Bishop refused to institute Mr. Oorham for the reason (as stated in the notification) that he had, upon examination, found Mr. Gorham unfit to fill the Vicarage, by reason of his holding doctrines contrary to the true Christian faith, and the doctrines contained in the Articles and Tormularies of the United Church of England and Irelcmd, and especially in the Book of Common Prayer, administration of the Sacraments, and other rites and ceremonies of the Church, according to the use of the United Church, of England and Ireland.

Mr. Gorlia/m, being refused institution, commenced proceedings in the Arches Court of Canterbury ; and at his promotion a monition with intimation issued on June 15, 1848, and thereby the Bishop was monished to admit Mr. Gorham to the Vicarage, and to institute and invest him therein; or otherwise to appear and show cause why Mr. Gorham should not be admitted and in-

Privy, Council Judgments. 19

stituted by the Official Principal of the Arches Court of 1850.

Oanierhuni. „

,, , GORHAM

After litigation had thus commenced, and Mr. Gorliam „ "• , , - ° ' Bishop oc

nad. called upon the Bishop to state why institution was bxei-eh.

refused, it became evident that the reasons must be con- /"'Jgme'rt. sidered upon legal principles, and it was perhaps reasonably to be expected that both parties would require a strict and formal proceeding, in which what was the particular unsound doctrine imputed to Mr. Gorham would have been distinctly alleged which constituted his alleged offence.

Unfortunately this course was not adopted. The Bishop Acton proceeded by Act on Petition % and in his Act he stated his charge against Mr. OorJiam, and alleged that it appeared to him, in the course of the examination, that Mr. Gorham was of unsound doctrine respecting that great and fundamental point of Baptism, inasmuch as Mr. Gorham held, and persisted in holding, that spiritual regeneration is not given or conferred in the holy Sacrament in particular — that infants are not made members of Christ and the children of God — contrary to the plain teaching of the Church of England, in her Articles and Liturgy, and especially contrary to the divers ofi&ces of Baptism, the office of Confirmation, and the Catechism, severally con- tamed in the Book of Common Prayer, and administration of the Sacraments, and other rites and ceremonies of the Church, according to the use of the United Church of England and Ireland.

In part supply of proof of the premises, the Bishop referred to a book written and caused to be printed by Mr. Gorham, containing, amongst other things, the several questions put by the Bishop to Mr. Gorham in the course of the examination, and Mr. Gorham' a several ■ answers to the same questions.

Mr. Gorham made no objection to the mode of proceed- '' ing by Act on Petition, but put in his Answer thereto ; Gorham. and thereby, after alleging that the book published by him, and brought into Court by the Bishop, ' contained a full, true, an accurate account of all the questions and answers which were given in the course of the examination,' he

' c2

Bishop of Exeter.

Judgment.

Defects in the pleadings.

Privy Council Judgments.

distinctly and emphatically denied that he, in his examination, did maintain, or had at any time maintained, unsound doctrine respecting the efficacy of the Sacrament of Baptism ; or that he had held, or persisted in holding, any opinions thereon at variance with the plain teaching of the Church of England in her Articles and Liturgy ; and fqI^;he^ explicitly and expressly denied that he either held, or persisted in holding, that infants are not made in Baptism members of Christ and children of God ; and he alleged that he did not maintain any views whatever contrary to the true doctrine of the Church of Englcmd, as dogmatically determined in her Articles, familiarly taught in her Catechism, and devotionally expressed in her Services, it having been his desire and endeavour throughout the examination to explain the language both of her direct Articles and Liturgy (in compliance with the expressions of the Church herself) by such just and favourable construction as would secure an entire agreement, not only of each with the other, but of all alike, with the plain tenor of Holy Scripture declared by the said Articles to be of paramount and absolute authority. The Bishop replied to Mr. Gorham's answers generally. The book published by Mr. Oorham was the only evidence adduced on either side ; and with such allegations as are contained in the Bishop's Act on Petition and Mr. Qorham's Answer, the case was brought on to be heard, with no statement on the part of the Bishop of what was, in his Lordship's view, the true doctrine of the Church of Englcmd, in respect of the efficacy of the Baptism either of adults or infants ; nor any specification of the doctrine imputed to Mr. Oorham, except the general charge before stated ; and no distinct statement on the part of Mr. Oorham of what, in his view, is the true doctrine of the Church of England — what is the particular doctrine which himself maintains on the subject in question, or in :• what particulars, or for what particular expressions, he requires the just and favourable construction which he considers to be necessary and sufficient to secure the entire agreement between the Articles and the Liturgy and his doctrine. As this form of pleading was acquiesced in on

Privy Council Judgments.

Bishop ok

EXETEIt.

Judgment,

both sides, neither party has any reason to complain of the 1850. other ; but those who are called upon to judge of the mat- Gomn^y ters in difference have great reason to complain that, instead of their attention being directed, as it ought to have been, to specific propositions distinctly stated, and to the evidence directly applicable to those propositions, instead of having a specific and precise statement of that which the Bishop alleged to be the doctrine of the Church of England upon the matters in question, and upon which he meant to rely, and of the specific doctrine held or imputed to Mr. Oorham and alleged to be unsound, the case is brought forward and left in such a form that, without being supplied with any allegations distinctly stated, or any issue distinctly joined, we are required minutely and accurately to examine a long series of questions and answers — questions upon a subject of a very abstruse nature, intricate, perplexing, entangling, and many of them not admitting of distinct and explicit answers ; and answers not ' given plainly and directly, but in a guarded and cautious manner, with the apparent view of escaping from some apprehended consequences of plain and direct answers. The inconvenience of this course of proceeding is so great, and the difficulty of coming to a right conclusion is thereby so unnecessarily increased, that, in our opinion, the Judge below would have been well justified in refusing to pronounce any opinion upon the case as appearing upon such pleadings, and in requiring the parties, even at the last moment, to bring forth the case in a regular manner by plea and proof.

The case comes before us precisely in the same state ; and although the Counsel on both sides have used their best endeavours to remove the vagueness and uncertainty found in the pleadings, as well as in the examination, and have thereby much assisted us, they have not been able entirely to remove the difficulty.

In considering the examination, which is the only evi-considera- dence, we must have regard not only to the particular IoaS'^' question to which each answer is subjoined, but to the general scope, object, and character of the whole examina-

examm- ation.

GORHAM

r. Bishop of

EkI'^TER.

Judgment.

Doctrine of Baptism as bald by Mr. Gorham.

Question to be decided by the Committee,

Principles of construction to be adhered to.

Privy Council Judgments.

tion ; and if, under circumstances so peculiar and perplex-,' ing, some of tte answers should be found difiBcult to be reconciled with one another (as we think is the case), justice requires that an endeavour should be made to reconcile them in such a manner as to obtain the result which appears most consistent with the general intention of Mr. Gorhani in the exposition of his doctrine and opinions.

Adopting this course, the doctrine held by Mr. GorJiam appears to be this : that Baptism is a sacrament generally necessary to salvation, but that the grace of regeneration does not so necessarily accompany the act of Baptism that regeneration invariably takes place in Baptism ; that the grace may be granted before, in, or after Baptism ; that Baptism is an effectual sign of grace, by which God works invisibly in us, but only in such as worthily receive it — in them alone it has a wholesome effect — and that, without reference to the qualification of the recipient, it is not in itself an effectual sign of grace ; that infants baptised, and dying before actual sin, are certainly saved ; but that in no case is regeneration in Baptism tinconditional.

These being, as we collect them, the opinions of Mr. Gorliam, the question, which we have to decide is, not whether they are theologically sound or unsound — not whether upon some of the doctrines comprised inthe opinions, other opinions opposite to them may or may not be held with equal or even greater reason by other learned and pious Ministers of the Church — but whether these opinions now under our consideration are contrary or repugnant to the doctrines which the Church of England, by its Articles, Formularies, and Rubrics, requires to be held by its Ministers, so that upon the ground of these opinions the Appellant can lawfully be excluded from the benefice" to which he has been presented.

This question must be decided by the Articles and the Liturgy ; and we must apply to the constrnction of those books the same rules which have been long established, and are by law applicable to the construction of all written instruments. We must endeavour to attain for ourselves the true meaning of the language employed, assisted only

Privy Council Judgments. 23

by the consideration of such external or historical facts as 1850. we may find necessary to enable us to understand the GoraAM subject-matter to which the instruments relate, and the, Bj^jiop^j, meaning of the words em.ployed. Exkieh.

In our endeavour to ascertain the true meaning and /"''g™'^"*-, effect of the Articles, Formularies, and Eubrics, we must by no means intentionally swerve from the old-established rules of construction, or depart from the principles which have received the sanction and approbation, of the most learned persons in times past, as being on the whole the best calculated to determine the true meaning of the documents to be examined. If these principles were not adhered to, all the rights, both spiritual and temporal, of her Majesty's subjects would be endangered.

As the subiect-matter is doctrine, and its application to Doctrinal

,. , ,. ., . , . , , , ,-,,,■, characterof

a particular question, it is material to observe that there Articles and ■were different doctrines or opinions prevailing or under ' '"'*3'- discussion at the times when the Articles and Liturgy were framed, and ultimately made part of the Law; but we are not to be in any way influenced by the particular opinions of the eminent men who propounded them or discussed them, or by the authorities . by which they may be supposed to have been influenced, or by any supposed tendency to give preponderance to Calvinistic or Arminian doctrines. The Articles and Liturgy, as we now have them, must be considered as the final result of the discussion which took place — not the representation of the opinions of any particular men, Calvinistic, Arminian, or any other, but the conclusion which we must presume to have been deduced from a due consideration of all the circumstances of the case, including both the sources from which the declared doctrine was derived, and the erroneous opinions which were to be corrected.

It appears, from the resolutions and discussions of the Variety ot Church itself, and from the history of the time, that from the Churob. the first dawn of the Reformation until the final settlement of the Articles and Pormularies, the Church was harassed by a great variety of opinions respecting Baptism and its efficacy, as well as upon other matters of doctrine.

Bishop op

24 Privy Council Judgments.

1850. The Charch having resolved to frame Articles of Faith,

as a means of avoiding diversities of opinion and establishing consent touching true religion, must be presumed to fixETEii. have desh-ed to accomplish that object as far as it could, jndgment and to have decided such of the questions then-under discussion as it was thought proper, prudent, and practicable to decide.- The Articles it could not have been intended to attempt the deofdeaii determination of all the questions which had arisen or questions. might arise, or to include in the Articles an authoritative statement of all Christian doctrine ; and in makiag the necessary selection of those points which it was intended to decide, we may be allowed to presume that regard was had to the points deemed most important to be made known to, and to be accepted by, the members of' the Church, and to those questions upon which the members of the Church could agree, and that other points and other questions were left for future decision by competent authority, and in the meantime to the private judgment of pious and conscientious persons. Someiati- Under such circumstances, it would perhaps have been

tc^retaSon impossible, even if it had been thought desirable, to employ oUffwed language which did not admit of some latitude of interpretation. If the latitude were confined within such Umits as might be allowed without danger to any doctrine necessary to salvation, the possible or probable difference of interpretation may have been designedly intended, even by the framers of the Articles themselves ; and in all cases in which the Articles considered as a test admit of different interpretations, it must be held that any sense of which the words fairly admit may be allowed, if that sense be not contradictory to something which the Church has elsewhere allowed or required ; and, in such a case, it seems perfectly right to conclude that those who imposed the ^ test, command no more than the form of the words em-

ployed ia their literal and grammatical sense conveys or implies ; and that those who agree to them are entitled to such latitude or diversity of intsrpretation as the same form admits.

Privy Council Judgments. 25

If it were supposed that all points of doctrine were 1850. decided by the Church of Unglamd, the law could not congomam sider any point as left doubtful. The .application of the jg/op j, law, or the doctrine of the Church of England, to any exeteii. theological questions which arose, must be the subject of .J°'g°"'"*-, decision ; and the decision would be governed by the construction of the terms in which the doctrine of the Church is expressed-viz. the construction which on the whole would seem most likely to be right.

But if the case be, as undoubtedly it is, that in the Ambiguous Church of Englcmd many points of theological doctrine mStoTft have not been decided, then the first and great question j°^ij^e^ which arises in such cases as the present is, whether the disputed point is or was meant to be settled at all, or whether it is left open for each member of the Church to' decide for himself according to his own conscientious opinion. If there be any doctrine on which the Articles are silent or ambiguously expressed, so as to be capable of two meanings, we must suppose that it was intended to leave that doctrine to private judgment, unless the Rubrics and Formularies clearly and distinctly decide it. If they do, we must conclude that the doctrine so decided is the doctrine of the Church. But, on the other hand, if the expressions used in the Rubrics and Formularies are ambiguous, it is not to be concluded that the Church meant to establish indirectly as a doctrine that which it did not establish directly as such by the Articles of Faith — the code avowedly made for the avoiding of diversities of opinion and for the establishing of consent touching true religion.

We must proceed, therefore, with the freedom which the Application administration of the Law requires, to examine the Articles °j i^^?et- and the Prayer Book for the purpose of discovering what **'°°' it is, if anything, which, by the Law of Englcmd, or the doctrine of the Church of England as by Law established, is declared as to the matter now. in question, and to ascertain whether the doctrine held by Mr. Gorham, as we understand it to be disclosed in his examination, is directly contrary or repugnant to the doctrine of the Church.

Bishop of Exeter.

Judgment.

Effect of Articles alone.

Articles of 1S36.

'The King's

Book'

Privy Council Judgments.

Considering, first, the effect of the Articles alone, it is material to observe that very difi"erent opinions as to the Sacrament of Baptism were held by different promoters of the Reformation, and that great alterations were made in the Arbicles themselves upon that subject.

The Articles about religion, drawn up in 1536, state it is offered unto all men, as well infants as such as hare the use of reason, that by Baptism they shall have remission of sin, and the grace and favour of God ; that the promise of grace and everlasting life (which promise is adjoined to the Sacrament of Baptism) pertaineth not only to such as have the gift of reason, but also to infants, innocents, and children ; and that they ought, therefore, and must needs be baptised ; and that by the Sacrament of Baptism they do also obtain remission of their sin, the grace and favour of God, and be made thereby the sons and children of God. Inasmuch as infants and children dying in their infancy shall undoubtedly be saved thereby, or else not. That infants must needs be christened, because they be born in original sin, which sin must needs be remitted, which cannot be done but by the Sacrament of Baptism, whereby they receive the Holy Ghost, which executes His grace and efficacy in them, and cleanseth and purifieth them from sin by His secret virtue and operation ; and that men and children, having . the use of reason and willing and desiring to be baptised, shall, by virtue of that holy Sacrament, obtain the grace and remission of all their sins, if they shall come perfectly and truly repentant, and contrite of all their sins before committed, and also perfectly and constantly confessing and believing all the Articles of our faith ; and, finally, if they shall also have a firm credence and trust in the promise of God adjoined to the Sacrament — that is to say, that in and by this said Sacrament, which they shall receive, God the Father giveth unto them, for His Son Jesus Christ's sake, remission of all their sins, and the grace of the Holy Ghost, wh^ereby they be newly regenerated, and made the very children of God, etc.

In the book entitled 'A Necessary Doctrine for any Christian Man,' and called ' The King's Book,' which was

Privy Council Judgments.

Bishop ov Exeter.

Judgment.

published in 1543, it is. thus stated : — ' Because all men be 1850. born sinners,' 'and cannot be saved -without remission of their sins, which is given in. Baptism by the working of the Holy Ghost, therefore the Sacrament of Baptism is necessary for the attaining of salvation and everlasting life.' ' For which causes also it is offered, and pertaineth to all men, not only such as have the use of reason, in whom the same duly received taketh away and purgeth all kinds of sins, both original and actual, committed and done before their Baptism ; but also it appertaineth and is offered unto infants, which, because they be born in original sin, have need and ought to be christened, whereby they, being offered in the faith of the Church, receive forgiveness of their sins, and such grace of the Holy Ghost that, if they die in the state of their infancy, they shall undoubtedly be saved. Because as well this Sacrament of Baptism, as all other sacraments instituted by Christ, have all their virtue, efficacy, and strength by the Word of God, which by His Holy Spirit worketh all the graces and virtues which be given by the sacraments to all those that worthily receive the same,' etc.

The Articles of 1562 and 1562 adopt very different language from the Articles of 1636, and have special regard to the qualification of worthy and right reception.

The 25th Article of 1562 distinctly states that in such only as worthily receive the same the sacraments have a wholesome effect or operation. The Article on Baptism, in describing the blessings conferred by it, speaks only of those who receive it rightly ; and, with respect to infants, instead of saying, in the language of the Articles of 1530, that ' they obtain remission of their sins and the grace and favour of God by Baptism, and that, dying in their infancy, they shall be undoubtedly saved thereby, or else not,' it declares only ' that Baptism of young children is in any- wise to be retained in the Church, as most agreeable with the institution of Christ,' stating nothing distinctly as to the state of such infants, whether baptised or not.

The Articles of 1536 have expressly determined two Articles of points^ — 1, that baptised infants, dying before the commis- 1562 dL

tinguished.

Articles of 15.52 and

Bl<«OP OF

Exeter. .Tudgment.

Points left open by Articles.

On these points difference of opinion has existed.

Privy Council Judgments.

sion of actual sin, were undoubtedly saved thereby ; 2, that un baptised infants were not saved.

The Articles of 1562 say nothing expressly upon either point, but, not distinguishing the case of infants from that of adults, state in general terms that those who receive Baptism rightly have the benefits there mentioned conferred.

What is signified by right reception is not determined by the Articles. Mr. Oorham says that the expression always means or implies a fit state to receive — viz., in the case of adults, * with faith and repentance,' and, in the case of infants, ' with Grod's grace and favour.'

On a consideration of the Articles, it appears that, besides this particular point, there are others which are left undecided. It is not particularly declared what is the distinct meaning and effect of the grace of regeneration^ whether it is a change of nature, a change of condition, or a change of the relation subsisting between sinful man and his Creator — and there are other points which may very plainly be open to different considerations in different cases.

Upon the points which were left open differences 'of opinion could not be avoided, even amongst those who sincerely subscribed to the Articles ; and that such differences amongst such persons were thought consistent with subscription to the Articles, and were not contemplated with disapprobation, appears from a passage in the Royal Declaration now prefixed to the Articles, and which was first added in the reign of King Charles I., long after the Articles were finally settled. ' Though some differences have been ill-raised, yet we taike comfort in this, that all Clergymen within our realm have always most willingly subscribed to the Articles established ; which is an argument to us, that they all agree in the true usual literal meaning of the said Articles, and that, even in those curious points in which the present differences lie, men. of all sorts take the Articles of the Church of UnglanA to be for them ; which is an argument, again, that none of them intend any desertion of the Articles established.'

Privy Council Judgments. 29

If the Articles which constitute tlie Code of Faith, and 1850. from which any differences are prohibited, nevertheless xjorhIm contain expressions which nnavoidably admit of different ^j^jj^p „,,, constructions — and members of the Church are left at exeteu.

liberty to draw from the Articles different inferences in •^"'^^™*--

matters of faith not expressly decided, and upon such Latitude to

• , , .,,..,. T , be allowed

points to exercise their private judgments — we may reason-in mterpret- ably expect to find such differences of opinion allowable in aevotionai the interpretation of the devotional services, which were ^^roises. framed not for the purpose of determiaing points of faith, but of establishing (to use the expression of the statute of mizabeth) an uniform order of Common Prayer, and of the administration of sacraments, rites, and ceremonies of the Church of Englcmd.

In considering the Book of Common Prayer, it must be Tripartite observed that there are parts of it which are strictly dog-prayer matical, declaring what is to be believed or not doubted ; "'' ' parts which are instructional, and parts which consist of devotional exercises and services. Those parts which are in their nature dogmatical must be considered as declaratory of doctrine ; but as to those parts which are devotional, consisting of prayers framed for the purpose of being ' more earnest, and fit to stir Christian people to the due honouring of Almighty God,' some further consideration is necessary.

It seems to be properly said that devotional exercises Deyotionai cannot be evidence of faith or of doctrine, without re-not as of ference to the distinct declarations of doctrine in the evwenoeof Articles, and to the faith, hope, and charity by which the o"*""*- Formularies profess to be inspired or accompanied ; and there are portions of the Liturgy which it is plain cannot be construed plainly without regard to these considerations. For the proof of this, the instance which seems to be most instanoeiot usually cited, and which is conclusive, is the Service for the se. Burial of the Dead. So far as our knowledge and powers of conception extend, there are and must be at least some persons not excommunicated from the Church who, having lived lives of sin, die impenitent — nay, some who die and perish in the actual commission of flagrant crimes — yet in

Privy Council Judgments.

Bishop op Judgment.

Absolute expressions to be construed in a qualified sense.

Tl^asons for this.

every case in the Burial Service, as the earth is cast upon the dead body, the Priest is directed to say, and he does say, ' Forasmuch as it hath pleased Alnaighty God, of His great mercy, to take unto Himself the soul of our dear brother here departed, we therefore commit his body to the ground, earth to earth, ashes to ashes, dust to dust, in sure and certain hope of the resurrection to eternal life ; ' and thanks are afterwards given: — ' For, that it hath pleased Almighty God to deliver this our brother out of the miseries of this sinful world ; ' and this is followed by a collect, in which it is prayed, ' that when we shall depart this life we may rest in God, as our hope is this our brother doth.' The hope here expressed is the same ' sure and certain hope of the resurrection to eternal life ' which is stated immediately after the expression, ' It hath pleased Almighty God, of His great mercy, to take to Himself the soul of our brother here departed.'

In this Service, therefore, there are absolute expressions implying positive assei'tions ; yet it is admitted that they cannot be literally true in all cases, but must be construed in a qualified or charitable sense — justified, we may believe, by a confident hope and reliance that the expression is literally true in many cases, and may be true even in the particular case in which to us it seems improperly applied. From this and other cases of the like kind, of which there are several in the Services, it seems manifest that devotional expressions, involving assertions, must not, as of course, be taken to bear an absolute and unconditional sense. The meaning must be ascertained by a careful consideration of the nature of the subject, and the true doctrine applicable to it.

If expressions in devotional exercises, and exhortations which imply or convey assertions which certainly may he true in some cases, and which we are permitted in charity to hope may be true in the particular cases to which we are directed to apply them, were such that the assertions must be accepted as universal propositions necessarily and unconditionally true in all cases, they would amount to declarations of doctrine ; but in the Service for the Burial

Privy Council Judgments. 31

of the Dead such implied assertions are clearly not to be 1850. taken to be universal propositions ; and it is plain that gotuiam other assertions of the like kiad, in other Services, may fall [...] within the same category. exeteii.

In the office for the administration of the Public Baptism Jp"'"*. _ of Infants, the first Rubric states the reason why it is con- consMera- venient that the administration should be when the most jana for number of people come together. The reasons are stated, Baptism of ' as well for that the congregation there present may testify ii**"*' the receiving of them that be now baptised into the number of Christ's Church, and also because, in the Baptism of Infants, every man present may be put in remembrance of his own profession made to God in his Baptism.' There is a prayer for the infant, ' that he (being delivered from wrath) may be received into the ark of Christ's Church ; and, being stedfast in faith, joyful through hope, and rooted in charity, naiay so pass the waves of this troublesome world that he may come to everlasting life. Another prayer that the infant coming to God's holy Baptism may receive remission of his sins by spiritual regeneration ; and an exhortation to the congregation, or to those present, not to doubt, but earnestly to believe, that God will favourably receive the present infant, and give unto him the blessing of eternal life. ' "Wherefore, we being persuaded of the good will of our heavenly Father towards this infant, and nothing doubting but that He favourably alloweth this charitable work of ours in bringing this infant to his holy Baptism, let us faithfully and devoutly give thanks to Him. And in the prayer which follows it is thus expressed : — ' Give Thy Holy Spirit to this infant, that he may be born again, and made an heir of everlasting salvation.' Before the ceremony is performed the sponsors are questioned, and make their answers ; and then comes the prayer in which it is said, ' Regard, we beseech Thee, the supplications of this congregation ; sanctify this water to the mystical washing away of sin ; and grant that this child, now to be baptised therein, may receive the fullness of Thy grace, and ever remain in the number of Thy faithful and elect children.' Thus studiously, in the introductory part of the

I860.

GORHAM V.

Bishop op Exeter.

Judgment.

and of Private Baptism of Infants.

Exceptional nature of this Service.

Privy Council Jn'dgments.

Service, is prayer made for the grace of God, that the child may receive remission of his sias by spiritual regeneration ; — so firm is the belief expressed that God vrall favourably receive the infant — so confident is the negation of all doubt, but that God favourably alloweth the charitable work of bringing the infanf to Baptism. All this is before the ceremony is actually performed ; and after the Baptism has been administered, and during the continuance of the same persuasion, and the same undoubting confidence of a favourable reception and allowance, the Priest is directed to say, ' Seeing now that this child is regenerate, and grafted into the Church, let us give thanks unto Almighty God for these benefits ; * and after repeating the Lord's Prayer thanks are thus given : — 'We yield Thee hearty thanks that it hath pleased Thee to regenerate this infant with Thy Holy Spirit, to receive him for Thine own child by adoption, and to incorporate him into Thy Holy Church.' The Service is followed by the Rubric :— ' It is certain by God's Word that children who are baptised, dying before they commit actual sin, are undoubtedly saved.' And to the short form for the administration of Private Baptism of Children in Houses, after a thanksgiving, ' For that it hath pleased God to regenerate this infant with His Holy Spirit, and to receive him as His own child by adoption, and to incorporate him into His Holy Church,' there is appended a Rubric :—'' And let them not doubt but that the child so baptised is lawfully and sufficiently baptised, and ought not to be baptised again. And if the child has not been so baptised by the Minister of the parish, but by some other, the Minister of the parish is to require by whom, with what matter, and with what words the child was baptised ; and, if satisfied, he is to certify that all is well done, and that the child, being bom in sin, and in the wrath of God, is now, by the laver of regeneration of Baptism, received into the number of the children of God and heirs of everlasting life.

The Baptism thus referred to, and the effect of which is thus stated or expressed, is a Baptism which may have taken place without any prayer for grace or any sponsors ;

Privy Council Judgments.

18S0.

GORHAM V.

Bishop op

Judgment,

but it seems p]ainly to have been intended only for cases of emergency, in which death might probably prevent the cerem.ony, if not immediately performed. For such occasions, and the child dying, the Church holds the Baptism sufficient, and not to be repeated. One Baptism for the remission of sins is acknowledged by the Church. Nevertheless, if the child, which is after this sort baptised, do afterwards live, the Rubric declares the expediency of bringing it into the Church, and appoints a further ceremony, with sponsors. The Private Baptism of Infants is ' an exceptional case, provided for an emergency, and for which, if the emergency passes away, although there is to be no repetition of the Baptism, a full service is provided. The adult person is not pronounced regenerate until he has first declared his faith and repentance ; and before the act of infant Baptism, the child is pledged by his sureties to the same conditions of faith and repentance. And these requirements of the Church, in her complete and perfect Service, ought, upon a just construction of all the Services, to be conside'red as the rule of the Church, and taken as proof that the same promise, though not expressed, is implied in the exceptional case, when the rite is administered in the expectation of immediate death, and the exigency of the case does not admit of sureties. Any other conclusion would be an argument to prove that none but the imperfect and incomplete-ceremony allowed in the exceptional case would be necessary in any case.

This view of the Baptismal Service is, in our opinion, Considcra- confirmed by the Catechism, in which, although the CatecMsm respondent is made to state that in his Baptism he 'was bearing oa made a member of Christ, the child of God, and an inhe- on*"" ritor of the kingdom of heaven,' it is still declared that repentance and faith are required of persons to be baptised ; and when the question is asked, ' Why, then, are infants baptised, when, by reason of their tender age, they cannot perform them ? ' the answer is, not that infants are baptised because of their innocence they cannot be unworthy recipients — cannot present an obex, or hindrance, to the grace of regeneration, and are therefore fit subjects

GrORHAM^

Bishop ot

ExE-fER.

Judgment.

In other Services expressions must receive a qualified construction.

34 Privy ■ Council Judgments.

for Divine grace — but ' because they promise them both by their sureties, which prom.ise, when they come to age, themselves are bound to perform.' The answer has direct reference to the condition on which the benefit is to depend, and tlie whole Catechism requires a qualified, or charitable consti'uction, such as must be given to the expression, ' Grod the Holy Ghost, who sanctifieth me and all the elect people of God.'

It seems unnecessary for us to go through the other Formularies in the Prayer Book. The Services abound with expressions which must be construed in a , charitable and qualified sense, and cannot with any appearance of reason be taken as proofs of doctrine. Our principal attention has been given to the Baptismal Services ; and those who are strongly impressed with the earnest prayers which are offered for the Divine blessing, and the grace of God, may not unreasonably suppose that the grace is not necessarily tied to the rite ; but that it ought to be earnestly and devoutly prayed for, in order that it may then, or when God ple^pes, be present to make the rite beneficial.

One of the points left open by the Articles is determined by the Rubric : — ' It is certain by God's Word that children which are baptised, dying before they commit actual sin, are undoubtedly saved.' But this Rubric does not, like the Article of 1536, say that such children are saved by Baptism ; and nothing is declared as to the case of infants dying without having been baptised.

There are other points of doctrine respecting the Sacrament of Baptism which we are of opinion are, by thefRubrics and Formularies (as well as the Articles), capable of being honestly understood in different senses ; and consequentljj^ we think that, as to them, the points which were left undetermined by the Articles are not decided by the Rubrics and "' Formularies ; and that upon these points all Ministers of the Church, having duly made the subscriptions "required by Law (and .taking Holy Soripiture for their guide) are at liberty honestly to exercise their private judgment without lOfience or censure. of qStol UP"g^* and conscientious men cannot in all respects

Private judgment may be exercised on points uude- termined.

Gorham,

Privy Council Judgments. 35

agree upon subjects so difficult; and it must be carefully 1850. borne in mind that the question, and tbe only question, for gkm us to decide, is, whether Mr. Oorham's doctrine is-contrary -q qi, or repugnant to the doctrine of the Church of Englcmd, as - bxbter. ' by Law established. Mr. Oorham's doctrine may be con- •'"°°*-. trary to the opinions entertained by many learned and as to Mr. pious persons, contrary to the opinion which such persons have, by their own particular studies, deduced from Holy Scripture, contrary to the opinion which they have deduced from the usages and doctrines of the Primitive Church, or contrary to the opinion which they have deduced from uncertain and ambiguous expressions in the Formularies ; still, if the doctrine of Mr. Gorham is not contrary or repugnant to the doctrine of the Church of Ungla/nd, as by Law established, it cannot afford a legal ground for refusing him institution to the living to which he has been lawfully presented.

This Court, constituted for the purpose of advising her Lima of the Majesty in maitters which come within its competency, has of the Comt. no jurisdiction or authority to settle matters of faith, or to determine what ought in any particular to be. the doctrine of the Church of Ungland. Its duty extends only to the consideration of that which is by Law established to be the doctrine of the Church of Ungla/nxL, upon the true and legal construction of her Articles and Formularies ; and we consider that it is not the duty of any Court to be minute and rigid in cases of this sort. We agree with Sir William Scott in the opinion which he expressed in Stone's case, in the Consistory Court of London — ' That if any Article is really a subject of dubious interpretation, it would be highly improper that this Court should fix on one meaning, and prosecute all those who hold a contrary opinion regarding its interpretation,'

In the examination of this case, we have not relied on the opinions of doctrinal opinions of any of the eminent writers by whose vines not piety, learning, and ability, the Church of .Ewg'Zami has been abie'from distinguished; but it appears that opinions, which we cannot H?^SmT in any important particular distinguish from those enter- tamed by Mr. Gorham, have been propounded and main-

D 2

GORHAM V.

Bishop or BxErrER.

Judgment.

36 Privy Council Judgments.

tamed, without censure or reproach, by many eminent and illustrious Divines who have adorned the Church from the time when the Articles were first established. We do not affirm that the doctrines and opinions of Jewel, Sooker, Usher, Jeremy Taylor, Whitgift, Pegrson, Garleton, PrideoMx, and many others can be received as evidence of the doctrine of the Church of England; but their conduct, unblamed and unquestioned as it was, proves, at least, the liberty which has been allowed of maintaining such doctrine.

Jewel. Bishop Jewel writes : ' This marvellous conjunction and

incorporation with God is first begun and wrought by faith.' . . . ' Afterward the same incorporation is assured unto us, and increased in our Baptism.' (A B«ply to Mr. Sa/rdmg's Answer. Works, vol. i., pp. 140, 1. Parker Soc. Edit.)

Hooker writes : ' We justly hold it to be the door of our actual entrance into God's house, the first apparent beginning of life, a seal, perhaps to the grace of election, before received, but to our sanctification here, a step that hath not any before it. (Bccles. PoUty, book v., ch. Ix., § B.)

Archbishop Usher, in reply to the question, ' What say you of infants baptised that are bom in the Church ; doth the inward grace in their Baptism always attend upon the outward sign ? ' answers, ' Surely no ; the Sacrament of Baptism is effectual in infants only to those, and to all those, who belong unto the election of grace.' (Usher's Catechism, Works, 8th edit. Quarto. London, 1702. p. 367.) Bishop Jeremy Taylor says : ' Baptism and its effect may be separated, and do not always go in conjunction ; the effect may be before, and therefore much rather may it be after its susception ; the Sacrament operating in the virtue of Christ, even, as the Spirit shall move.' (Life of our Saviour, part iv., § ix. Discourse vi., of Baptism, part ii., § 2.)

Wiitgifl. Th«Ee was .even a time when doctrine to this effect was

j-equired to be studied in our Charch ; and Whitgift, by a circular issned in the year 1588, enforced an order made in the year 168 7^ whereby every Minister under the degree oi Master of Arts was required to study and take for his

Hooker.

Usher-

Jeremy Taylor.

Privy Council Judgments. 37

model the Decades of Bullinger, as presented hy tte Queen i860.

and Upper House of Convocation. And there it is declared, ^"^^

the Sacraments. In Baptism that is sealed and confirmeii /"^g^™*-.

to infants which they had before.' (Bullinger' s Decaides,

p. 1047, col. 2. London, 1587.)

So with respect to the charitable interpretation of Diviae Hooker. Services, Hooker says : 'The Church speaks of infants as the rule of charity alloweth both to speak and to think.' * (Eceles. Pol., book v. ch. 65, § 3.)

Bishop Pearson says : ' When the means are used with- Pearson. out something appearing to the cojitrary, we ought to presume of the good effect.' (Exp. of Creed, p. 658. Ed. 1849.)

Bishop Carleton says : ' All that receive Baptism are Carieton. called the chidren of God, regenerate, justified ; for to us they must be taken for such in charity, until they show themselves other.' (An Examination, etc., in reply to Montagu.)

And Bishop Pridewax says : ' Baptism only pledges an Prideaux. external and sacramental regeneration, which the Church in charity pronounces that the Holy Spirit renders an inward regeneration.' (AppeUo Ceesarem, p. 193. London, 1626.)

We express no opinion on the theological accuracy of These opin- these opinions, or any of them. The writers whom we have aence'of the cited are not always consistent with themselves, nor are ^^^\as the reasons upon which they found their positions always iJeen enjoyed vaUd ; and other writers of great eminence, and worthy of Church. great respect, have expressed very different opinions. But the mere fact that such opinions have been propounded and maintained by persons so eminent, and so much respected, as well as by very many others, appears to us sufficiently' to prove that the liberty which was left by the

* It is pointed out by Mr. E. F. Moore, in his Report of this case (London, 1852), that there is a slight inaccuracy in the quotation. The passage should run thus : ' We speak of infants' as the rule of piety alloweth both to speak and to think.'

Bishop os*

Judgment,

Sentence of theConrt.

Beversal of judgment of the Bean of the Arches.

Privy Council Judgments.

Articles and Formularies has been actually enjoyed and exercised by the members and ministers of the Church of Englamd.

' The case not requiring it, we hare abstained from expressing any opinion of our own upon the theological correctness or error of the doctrine held by Mr. Gorham, which was discussed before us at such great length and with so much learning. His Honour the Vice- Chancellor Knight Bruce dissents from our judgment ; but all the other members of the Judicial Committee who were present.at the hearing of the case (those who are now present, and Baron Pa/rke, who is unavoidably absent on circuit) are unanimously agreed in opinion ; and the judgment of their Lordships is, that the doctrine held by Mr. Gorham is not contrary, or repugnant to the declared doctrine of the Church of England as by Law established, and that Mr. Gorham ought not, by reason of the doctrine held by him, to have been refused admission to the Vicarage of Brampford Bpeke.

We shall, therefore, humbly report to her Majesty that the sentence pronounced by the learned Judge ought to be reversed, and that it ought to be declared that the Respondent, the Lord Bishop of Exeter, has not shown sufficient cause why he did not institute Mr. Gorham to the said Vicarage.

We shall humbly advise her Majesty to remit the cause with that declaration to the Arches Court of Gamterbury, to the end that right and justice may there be done in this matter, pursuant to the said declaration.

[On the following day (March 9, 1850) an Order in Council was accordingly made upon their Lordships' judgment and report.]

Proceedings in Common Law Courts. April 15,

[It remains, so far as the history of the case is concerned, briefly to allude to the proceedings in the Common Law Courts, whereby an attempt was made by the Respondent to oust the jurisdiction of the Judicial Committee of the Privy Council, as the Court of Pinal Appeal, and to substitute in lieu thereof the Upper House of Convocation,

Williams v. Bishop of Salisbury; Wilson v. Fendall (1864)

The right REVEREND the LORD 1 ^ BISHOP OE SALISBURY . . . .) Respondent.

The REVEREND HENRY BRISTOW

WILSON, Clerk . . .

AND

I Appellant ;

On Appeal from, the Arches Gov/rt of Canterbury .

Proceedings against a CJerk in Holy Orders under the Church Discipline Act, 3rd and 4th. Vic, c. 86., for publishing heretical doctrines in contravention and violation of the Articles of Religion and Formularies of the Church of England, are of a criminal nature, and it is necessary that the accusation should be stated with precision and distinctness in the pleadings.

The Articles of Charge must (1) distinctly state the opinions "which the Clerk has advisedly maintained, and must set forth the passages of the work in which those opinions are stated ; and (2) such Articles must specify the doctrines of the Church, which the opinions of the Clerk are alleged to have contravened, and the particular Articles of Religion and the Formularies which contain such doctrines.

The Accuser is for the purpose of the Charge con-

* Present: The Lord Chancellor (Westbury); the Archbiehop of Canterbury (Dr. Longley) ; the Archbishop of York (Dr. Thomson) ; the Bishop of London (Dr. Tait) ; Lord Cranworth, Lord Chelmsford, and Lord Kingsdown.

82 Privy Council Judgments.

fined to the Charges, which are included and set out in the Articles of Charge as the matter of accusation; but it is competent to the Accused to explain from the rest of his work, from which the passages libelled are extracted, the sense or meaning of any passage or word that is challenged by the Accuser.

With respect to the le^l tests of doctrine in the Church of JEnglcmd, by the appHcation of which the Judicial Committee, or the Appellate Court is to try the soundness of the passages libelled, it is the province of that Court, on the one hand, to ascertain the true construction of the Articles of Religion and Formularies referred to in each charge, according to the legal rules for the interpretation of Statutes and written instruments ; and, on the other hand, to ascertain the plain grammatical meaning of the passages which are charged as being contrary to, or inconsistent with, the doctrines of the Church.

Matters of doctrine in which the Church has prescribed no rule may be discussed without penal consequences ; and no rule is to be ascribed to the Church, which is not found expressly and distinctly stated, or which is not plainly involved in, or to be collected from, the written law of the Church.

In the eleventh Article of Religion it is laid down that ' we are accounted righteous before God only for the merits of our Lord and Saviour Jesus Christ, and not for our own works or deservings.' Held, that ag the Article was wholly silent as to the merits of Jesus ; Christ being transferred to us, and asserts only that we are justified for the merits of Jesus Christ our Saviour by faith, and by faith alone, that it was not penal in a Clergyman to speak of merit by transfer as a 'fiction,' however unseemly that word may be when used in connection with' such a subject.

In an A.rticle against a Clergyman it was charged that it was a contradiction of the doctrine of the Chlirch of Englami as laid down in the 6th and 20th Articles of Religion, the Nicene Creed, and in the Ordination Service of Priests to affirm that any part of the Canonical Books of the Old and New Testament upon any subject whatever, however unconnected with religious faith, or moral duty, was not written under the inspiration of the Holy Spirit. ReId, that the charge that every part of the Scriptures was written under

Privy Council Judgments. 83

the inspiration of the Holy Spirit was not established, as it was not to be found either in the sizth or twentieth Articles of Religion, the Formularies, the Service for the Ordering of Priests, or the Nicene Creed.

It is not competent for a Clergyman of the Church oi England to teach or suggest, that a hope may be entertained of a state of things contrary to what the Church expressly teaches or declares will be the case.

An Article setting forth extracts of a review of a work that a Clergyman of the Church of England had reviewed, charging that he had therein advisedly de- dared that after this life there would be no judgment of God, awarding either eternal happiness or eternal misery, contrary to the Three Creeds, the Absolution, the Catechism, and the Burial and Commination Service : Held, not established by the passages of the work pleaded.

It is not penal for a Clergyman to express a hope of the ultimate pardon of the wicked.

These appeals were brought from sentences pronounced June 1863. by the Dean of the Arches (Dr. Lushington), in two separate -ysril^jis suits instituted in that Court. The one promoted by the "•

Respondent, the Bishop of Salisbury, against the Appellant, salisetoy the Rev. Boviland Williams, D.D., Vicar oi Broad Ghalh, in Wilson the county of Wilts, and Diocese of Salisbury ; and the fexdail. other promoted by the Respondent, the Rev. James Fendall, statement. against the Appellant, the Rev. Henry B. Wilson, a Clerk in Holy Orders, and Vicar of Great StaugJiton, in the Diocese of Ely. Both suits came before the Arches Court on Letters of Request at the instance of the Bishops of Salisbury and My, and were instituted under the Church Discipline Act, 3 and 4 Vic. c. 86, for publishing in a book, called ' Essays and Reviews,' two .separate Articles, or Essays (the one by the Appellant Williams, entitled ' Btmsen's Biblical Researches ;' and the other by the Appellant Wilson, called ' Seances historiques de Geneve ' — ' The National Church'), in both of which were maintained and affirmed as it was alleged by the Promoters, erroneous and heretical doctrines, and opinions contrary and repugnant to the doctrine and teaching of the United Church of England aud Ireland.

WnMAMS V.

Bishop of

Salisbury

and

WlLSOH V,

Fendall. statement.

Privy Council Judgments.

The Articles of Charge brought in by the Respondent the Bishop of 8alisbwry in the Arches Court against Dr. Williams were originally twenty-two, ziaA those against Mr. Wilson by the'Respondent Fendall nineteen in number, in which various passages extracted from the Appellants' respective Essays were articled and alleged to contain doctrines contrary to, or inconsistent with, the doctrines of the Church of England., as set forth in the Articles of Religion, and contrary to, and in derogation of, the doctrine and teaching of the Church as contained in the Book of Common Prayer and in her Formularies.

The several Articles of Charge were objected to, and opposed on behalf of both the Appellants ; those admitted against the Appellant Dr. Williams, and which remained, or were reformed, and now formed the subject of Appeal to the Privy Council, were Originally numbered the 7th, 12th, and 16th, and were as follows : — ' Seventh. And we further article and object to you, the said Rev.i2. WilUams, that in the said Essay, or Review, are contained the following passages — that is to say, at pages 60 and 61 : — " As in his Egypt our author sifts the historical date of the Bible, so in his ' Oott in der Gesohichte ' he expounded its directly religious element. Lamenting, like Pascal, the wretchedness of our feverish being, when estranged from its eternal Stay, he traces, as a countryman of Segel, the Divine thought bringing order out of confusion. Uuhke the despairing school who forbid us to trust in God, or in conscience, unless we kill ourselves with literalism, he finds salvation for men, and states, only in becoming acquainted with the Author of our life, by whose reason the world stands fast, whose stamp we bear in our forethought, and whose voice our conscience echoes. In the Bible, as an expression of devout reason — and therefore to be read with reason in freedom-^he finds record of the spiritual giants, whose experience generated the religious atmosphere we breathe." At pages 77 and 78, "But if such a notion alarms those who think that, apart from Omniscience belonging to the Jews, the proper conclusion of reason is Atheism ; it is not inconsistent with the idea that Almighty

Privy Council Judgments. 85

God lias been pleased to educate men, and nations employ- 1863. ing imagination no less than conscience, and suffering His -vriiMg lessons to play freely witUn the limits of humanity, and its - qj, shortcoming. Nor will any fair reader rise from the prosaushuht phetical disquisition, without feeling that he has been Wilson under the guidance of a master's hand. The great result fendall. is to vindicate the work of the Eternal Spirit, that abiding statement. influence which, as our Church teaches us in the Ordination Service, underlies all others, and in which converge all images of old time, and means of grace now ; Temple, Scripture, Finger and Hand of God; and again preaching;- Sacraments, Waters which comfort, and Flame which burns. If such a Spirit did not dwell in the Church, the Bible would not be inspired, for the Bible is, before all things, the written voice of the cogegation, Bold as such a theory of inspiration may sound, it was the earliest creed of the Church, and it is the only one to which the facts of Scripture answer. The sacred writers acknow- - ledge themselves men of Uke passions with ourselves, and we are promised illumination from the Spirit, which dwelt in them. Hence, when we find our Prayer Book constructed on the idea of the Church being an inspired society, instead of objecting that every one of us is falUble, we should define inspiration consistently with the facts of Scripture and of human nature. These would neither exclude the ideas of fallibility among Israelites of old, nor teach us to quench the spirit in true hearts for ever. But if anyone prefers thinking the sacred writers passionless machines, and calling Luther and Milton ' uninspired,' let him cooperate in researches by which his theory, if true, will be triumphantly confirmed."

' And we article and object that in the passages heinbefore recited, being portions of the said Essay, or Review, you did advisedly maintain or affirm that the Bible, or Holy Scripture, is "an expression of devout reason," and " the written voice of the congregation," not tbe " Word " of God, nor containing special revelation of His truth, or of His dealings with mankind, nor .of the rule of our faith ; or that you did therein advis-

Privy Council Judgments.

WlLLIASIS

edly maintain and affirm doctrines or opinions to that or the like purport and efi'ect, and that the said doctrines, positions, or opinions, are contrary to, or inconsistent with, the 6th, 7th, and 20th, of the said Articles of Religion, and contrary to, and inconsistent with, that part of the Niaene Creed which declares in *snbstance that the Holy Ghost spake by the Prophets.'

' Twelfth. And we article and object to yon, the Rev. B. Williams, that in the said Essay, or Review, is contained the following passages, at pages 81 and 87 : -^" Propitiation would be the recovery of that peace which cannot be while sin divides us from the Searcher of hearts." And we article and' object that in the passage hereinbefore recited, being a portion of the said Essay, or Review, yon did advisedly maintain and affirm that the offering of Christ is not the propitiation for the sins of the whole world ; or that you did therein advisedly maintain and affirm a doctrine, or opinion, to that or the like purport and effect, and that such doctrine or opinion Is contrary to, or inconsistent with, the Thirty-first of the said Articles of Religion.'

' Fifteenth. And we further article an(J object to you, the Rev, E. Williams, that in the said Essay, or Review, is contained the following passage, at pages 80 and 81, in the words following — to wit : — " For though he embraces with more than orthodox warmth New Testament terms, he explains them in such a way that he may be charged with using Evangelical language in a philosophical sense. But, in reply, he would ask what proof is there that the reasonable sense of St. Paul's words was not the one which the Apostle intended ?

' "Why may not justification by faith have meant the peace of mind or sense of Divine approval which comes of trust in a righteous God, rather than a fiction of merit by transfer ? St. Paul would then be teaching moral responsibility as opposed to sacerdotalism, or that to obey is better than sacrifice, Faith would be opposed, not to the good deeds , which conscience requires, but to works of appeasement by ritual. Justification would neither be an arbitrary ground of confidence, nor a reward upon con-

Privy Council Judgments. 87

dition of our disclaiming merit, but rather a verdict of for- 1863. giveness on. our repentance, and of acceptance upon the -williaws oflFering of our hearts." _ bismpok

' And we article and object that in the passage hereinsausbuky before recited, being a portion of the said Essay, or Review, wilsok you did 8,dvisedly maintain and affirm that justification by fekdall. faith meaas only the peace of mind, or sense of Divine ap-statement. ^ proval, wHch comes of trust in a righteous God, and that justification is a verdict of forgiveness upon our repentance, and of acceptance upon the offering of our hearts ; or that yoi did therein advisedly maintain and affirm a doctrine or opinion to that or the like purport and effect ; and that such doctrine or opinion is contrary to, or inconsistent with, the Eleventh of the said Articles of Religion.'

As regarded the Appellant Wilson, the Articles of Charge remaining ard reformed were those originally numbered Eighth, Twelfth, and Fourteenth.

The Eighth Article was as follows : — ' And we further article and o')ject to you, the Rev. H. B. Wilson, that in the said Bsay, or Review, is the following passage, at pages 175, li6, and 177: — "It has been matter of great boast within the Church of England, in common with other Protestmt Churches, that it is founded upon the 'Word of Gd' — a phrase which begs many a question, when applied collectively to the Books of the Old and New Testamtnts, a phrase which is never so applied to them by any cf the Scriptural authors, and which, according . to Protestantprinciples, never could be applied to them by any sufficientauthority from without. In that which may be considerec' the pivot article of the Church, this expression does not occur, but only ' Holy Scripture,' ' Canonical Books,' ' 01c and New Testaments.' It contains no declaration of tie Bible being throughout supernaturally suggested, nor aiy intimation as to which portions of it were owing to a special Divine illumination, nor the slightest attempt at d'fining inspiration, whether mediate or immediate, whethr through, or beside, or overruling the natural faculties of tie subject of it — not the least hint of the re-

Privy Council Judgments.

Williams

Bishop op

Salisbdby

and

Wilson

Fendall. Statement.

lation between the Divine and Luman elements in the composition of the Biblical Books. Even if the Fathers have usually considered ' canonical ' as synonymous with ' miraculously inspired,' there is nothing to show that their sense of the word must necessarily be applied in our own Sixth Article. The word itself may mean either Books ruled and determined by the Church, or regulative Books, and the employment of it in the Article hesitates between these two significations. For at one time ' Holy Scripture ' and Canonical Books are those Books ' of whosi authority never was any doubt in the Church ' — that is, they are ' determined ' Books — and then the other, or noi- Canonical Books, are described as those which ' the Chuiph doth not apply to establish any doctrine ' — that is, dey are not ' regulative ' Books. And if the other princiml Churches of the Reformation have gone further in defintion in this respect than our own, that is no reason we should force the silence of our Church into unison with their expressed declarations, but rather that we should rejoice in our comparative freedom. The Protestant feeling among us has satisfied itself in a^ blind way with the anti-Isman declaration that ' Holy Scripture containeth all thugs necessary to salvation ; so that whatsoever is not read therein, nor may be proved thereby, is not to be require!, of any man that it should be believed as an Article of the FVith,' etc., and without reflecting how very much is wisely len open in that Article. For this declaration itself is partlyWegative and partly positive. As to its negative part, it Seclares that nothing — no clause of creed, no decision oi council, no tradition or exposition — is to be required to bl believed on peril of salvation, unless it be Scripture; but it does not lay down that everything which is contained W Scripture must be believed on the same peril. Grit maype expressed thus : — The Word of God is contained in Scrip are, whence it does not follow that it is co-extensive wih it. The - Church to which we belong does not put tha stumbling Block before the feet of her members ; it is the r own fault if they place it there for themselves, authors (' their own ofience." ' '

Privy Council Judgments. 89

' And we article and object to you, that in the passage 1863. hereinbefore recited, being portion of the said Essay, or Re- -yy^^jig view, yoa did advisedly declare and affirm in effect that the Scriptures of the Old and New Testament were not written under the inspiration of the Holy Spirit, and that they were not necessarily at all, and certainly not in parts, the Word of God ; or that you did therein advisedly declare and affirm a doctrine or opinion to that or the like purport or effect ; and that such doctrine or opinion is contrary to, or inconsistent with, the 6th and 20th of the said Articles of Religion, and contrary to, or inconsistent with, the teaching of the said Church, as contained in that part of the Nicene Creed which declares in substance that the Holy Ghost spake by the Prophets ; and as set forth in the Ordination of Priests in the Book of Common Prayer — to wit, in the words followiag : — " The Bishop shall deliver to every one of them the Bible into his hands, saying, ' Take then authority to preach the "Word of God.' "

' Twelfth. Also we further article and object to you, the Rev. H. B.Wilson, that in the said Essay, or Review, are the following passages, at pages 153 and 154 : — "And when we hear fine distinctions drawn between covenanted and uncovenanted mercies, it seems either to be a distinction without a difference, or to amount to a denial of the broad and equal justice of the Supreme Being. We cannot be content to wrap this question up, and leave it for a mystery as to what shall become of those myriads of non-Christian races." And we article and object to you that in the passage hereinbefore recited, being portion of the said Essay, or Review, you did advisedly declare and affirm that the condition of men in a future state of existence will be determined by their moral conduct, according to the law or sect which they severally profess, exclusive of their religious belief; or that you did therein advisedly declare and affirm a doctrine or opinion to that or the like purport or effect ; and that such doctrine or opinion is contradictory to, or inconsistent with, the 18th of the said Articles of Religion.'

' Fourteenth. And we further article and object to you,

Privy Council Judgments.

Williams

Blsuop of

Saliselky

and

Wiisos

Fendall. statement.

the Rev. H. B. Wilson,, that in the said Essay, or Review, is contained the following passage, at page 206 : — " The Christian Chnrch can only tend on those who are committed to its care to the verge of that abyss which parts this world from the world unseen. Some few of those fostered by her are now ripe for entering on a higher career; the many are but rudimentary spirits-;— general souls. What shall become of them ? If we look abroad in the world, and regard the neutral character of the multitude, we are at a loss to apply to them either the promises or the denunciations of revelation. So the wise heathens could anticipate a reunion with the great and good of all ages ; they could represent to themselves, at least in a figurative manner, the punishment and purgatory of the wicked ; but they could not expect the reappearance in another world, for any purpose, of a Thersites or an Hyper- bolos — social and political justice had been sufficiently done upon them. Tet there are such as these, and no better than these, under the Christian name — babblers, busybodies, livers to get gain, and mere eaters and drinkers. The Roman Church has imagined a Umbus infantium ; we must rather entertain a hope that there shall be found, after the great adjudication, receptacles suitable for those who shall be infants, not as to years of terrestrial life, but as to spiritual development — nurseries, as it were, and seed grounds, where the undeveloped may grow up under new conditions — the stunted may become strong, and the perverted be restored. And when the Christian Church in all its branches shall have fulfilled its sublunary office, and its Founder shall have surrendered His kingdom to the Grreat Father, all, both small and great, shall find a refuge in the bosom of the Universal Parent, to repose, or be quickened into higher life, in the ages to come, according to His will." And we article and object to yon, that in the passage hereinbefore recited, being a portion of the said Essay, or Review, you did advisedly declare and affirm, in efieot, that after this life, and at the. end of the existing order of things on this earth, there will be no judgment of God awarding to those men whom He shall then ap-

Privy Council Judgments. 91

prove everlasting life or eternal happiness, and to those 1863-

men whom He shall then condemn everlasting death or wimAMs

port or effect; and that the said doctrine or opinion is Wilson

contrary to, or inconsistent with, the teaching of the said fendall.

Church, as contained in the Creeds commonly called the statement. _

Apostles' Creed, the Nicene GreeA, and St. Athafmsms'

Creed ; and as contained in the Absolution or Remission .

of Sins, which forms part of the Morning Prayer in

the said Book of Common Prayer, and in which the Priest

says, "Wherefore let us beseech Him to grant us true

repentance and His Holy Spirit, that those things may

please Him which we do at this present, and that the

rest of our life hereafter may be pure and holy, so that at

the last we may come to His eternal joy, through Jesus

Christ our Lord." And as contained in the following part

of the Catechism, which forms part of the said Book of

Common Prayer : — " Question. What desirest thou of God

in this prayer ? Answer. I desire my Lord God, our

Heavenly Father, who is the Giver of all goodness, to send

His grace unto me and to all people. And I pray unto

God that He will keep us from all sin and wickedness, and

from our ghostly enemy, and from everlasting death."

And as contained in the following portions of the Order for

the Burial of the Dead, which forms part of the said Book

of Common Prayer : — " In sure and certain hope of the

resurrection to eternal life through our Lord Jesus Christ,

who shall change our vile body, that it may be like unto

His glorious Body, according to the mighty working

whereby He is able to subdue all things unto Himself"

" merciful God, the Father of our Lord Jesus Christ;

who is the B«surrection and the Life, in whom whosoever

believeth shall live though he die ; and whosoever liveth,

and believeth in Him, shall not die eternally ; who also

taught us, by His Holy Apostle St. Paul, not to be sorry

as men without hope for them that sleep in Him ; we

meekly beseech Thee, Father, to raise us from the death

of sin unto the life of righteousness, that when we shall

Privy Council Judgments.

WiLLUJIS V.

Bishop op

Salisbury

and

Wilson

r. Fexdall.

Statement.

Proceedings in Gonrt of the 'Arches.

depart this life we may rest in Him, as our hope is this our brother doth ; and at the general resurrection in the last day, we may be found acceptable in Thy sight and receive that blessing which Thy well-beloved Son shall then pronounce to all who love and fear Thee, saying, ' Come ye blessed children of My Father^ receive the kingdom prepared for you from the beginning of the world.' " And as contained in the following portions of the Commination Service, which forms part of the said Book of Common Prayer : — " The day of the Lord cometh as a thief in the [...] Then shall it be too late to knock when the door shall be shut, and too late to cry for mercy when it is the time of justice. O terrible Voice of most just judg- . ment, which shall be pronounced upon them, when it shall be said unto them, ' Go ye cursed into fire everlasting, which is prepared for the devil and his angels.' This if we do Christ will deliver us from the curse of the law, and from the extreme malediction which shall light upon them that shall be set upon the left hand ; and He will set us on His right hand, and give us the gracious benediction of His Father, commanding us to t^e possession of His glorious kingdom."

The admission of the original Articles of Charge was opposed in the Court below (the Arches Court of Canterbury) both by Dr. Williams and Mr. Wilson, and argued against at great length by Dr. Deane, Q.C., and Mr. Fitzjames Stephen on their behalf; Dr. PMllimore, Q.C., Mr. Coleridge, Q.G., and Dr. Swabey were heard in support of the Articles.

The learned Judge of the Court of Arches (the Right Hon. Dr. Lushington) gave judgment on the question of the admissibility of the original Articles on June 25, 1862. With regard to the case of Dr. Williams, he rejected all such Articles of Charge as were not merely formal ones, except the 7th, 12th, and 15th, ordering the 7th and 12th to be reformed. With regard to the case of Mr. Wilson, he rejected all such Articles as were not merely formal, except the 8th, 12th, and 14th, ordering the 8th and 12th to be reformed, and gave to either party leave to

Privy Council Judgments. 93

appeal to Her Majesty in Council* from those judgments, 1862. but no appeal in eithe? case was asserted. wimTMs

Both Dr. Williafns and Mr. Wilson filed allegations in Wilson answer to the reformed Articles, in which they severally feitoali.. and specifically denied that they had maintained, or affirmed, statement. ^ heretical doctrines contrary to tue doctrine and teaching of the Church.

The allegations in reply to the reformed Articles having, after argument, been admitted, evidence was directed to be taken vvvd voce in open Court. The authorship and the publication of the several Essays in question were admitted, but no evidence was adduced by either side.

On the 15th of Dec, 1862, the learned Judge, in pronouncing the final sentence of the Court, said that he had already pronounced his opinion on the Articles of Accusation, and that he saw no reason to alter, or retract any portion of the judgments he had delivered on June 25, 1862 ; and by -his final sentences declared the Articles of Accusation proved, and in each case pronounced sentence of suspension ah officio et heneflcio for the term of one year, condemning both the Defendants (^Williams and Wilson) in costs.

Separate Appeals were brought ^om these sentences, j^me 19, The Respondents adhered to the Appeals. ' 20, 25, and

The Appellants, Dr. WilUams and Mr. Wilson, appeared ^ '

in person ; Proceedings

The Queen's Advocate (Sir B. PhilUmore, Q.C.) and judicial Dr. Swabey for the Respondent Fendall ; and °'°°''

The Queen's Advocate and Mr. Coleridge, Q.C, for the Respondent the Bishop of Salishwry.

The Respondent Fendall abandoned at the hearing of the Twelfth Article of his Charge.

Mr. Wilson and Dr. Williams, Appellants in person, were heard in support of their respective Appeals.

Privy Council Judgm.ents.

Williams

Bishop of

SAUSBrrET

and

WlLSOS

Fendall.

Feb. 8, 1864. Judgment.

Character of the suits.

Limits of the jurisdiction of the Court as to doctrine.

Tte Queen's Advocate contra for both. B/espondents. Mr. Coleridge, Q.O., for the Bishop of SaUsiwry, having been heard,

Judgment was reserved to February 8, 1864, when it was delivered by ^

The Lord Chancelloe (Westbury).

These Appeals do not give to this Tribunal the power, and therefore it is no part of its duty to pronounce any opinion on the character, effect, or tendency of the publications known by the name of ' Essays and Reviews.' Nor are we at liberty to take into consideration, for the purposes of the ' prosecution, the whole of the Essay of Dr. WilUdms or of the Essay of Mr. Wilson. A few short extracts only are before us, and our judgment must by Law be confined to the matter which is therein contained. If, therefore, the Book, or these two Essays, or either of them as a whole, be of a mischievous and baneful tendency, as weakening the foundation of Christian belief, and likely to cause many to offend, they will retain that character, and be liable to that condemnation, notwithstanding this our judgment.

These prosecutions are in the nature of criminal proceedings, and it is necessary that there should be precision and distinctness in the accusation. The Articles of Charge must distinctly state* the opinions which the Clerk has advisedly maintained, and set forth the passages in which those opinions are stated ; and, further, the Articles must spefcify the doctrines of the Church which such opinions or teaching of the Clerk are alleged to contravene, and the particular Articles of Religion or portions of the Formularies which contain such doctrines. The ActJuser is, for the purpose of the Charge, confined to the passages which are included and set out in the Articles as the matter of the accusation ; but it is competent to the accused party to explain from the rest of his work the sense or meaning of any passage or word that is challenged by the Accuser.

With respect to the legal tests of doctrine in the C Lurch

■ of England, by the application of which we are to try the

soundness or unsoundness of the passages libelled, we

agree with the learned Judge in the Court .below that the

Privy Council Judgments. 95

judgment in the Gorham case is conclusive : — ' This Court, Peb. S,

constituted for the purpose of advising her Majesty in ^

matters which come within its competency, has no jurisdic- Williams ,tion or authority to settle matters of faith or to determine bishop of what ought in any particular to be the doctrine of the anrj Church of England. Its duty extends only to the consider- Wilson ation of that which is by Law established to be the doctrine Fenball. of the Church of England, upon the true and legal con- [...] struction of her Articles and Formularies.' (Ante, p. 35.) By the rule thus enunciated it is our duty to abide.

Our province is, on the one hand, to ascertain the true construction of those Articles of Religion and Formularies referred to in each Charge, according to the legal rules for the interpretation of statutes and written instruments ; and, on the other hand, to ascertain the plain grammatical meaning of the passages which are charged as being contrary to or inconsistent with the doctrine of the Church, ascertained in the manner we have described.

It is obvious that there may be matters of doctrine on Some which the Church has not given any definite rule or doctrine are standard of faith or opinion — there may be matters of ^'*'°p^°- religious belief on which the requisition of the Church may be less than Scripture may seem to warrant — there may be very many matters of reKgious speculation and enquiry on which the Church may have refrained from pronouncing any opinion at all. On matters on which the Church has prescribed no rule, there is so far freedom of opinion that they may be discussed without penal consequences. Nor in a proceeding like the present are we at liberty to ascribe to the Church any rule or teaching which we do not find expressly and distinctly stated, or which is not plainly involved in or to be collected from that which is written.

With resnect to the construction of the passages extracted Accused,

^ . ^ . now far re-

from the Essays of the accused parties, the meaning to be sponsible. ascribed to them must be that which the words bear, ac- cordincr to the ordinary grammatical meaning of language. That only is matter of accusation which is advisedly taught or maintained by a Clergyman in opposition to the doctrine of the Church. The writer cannot, in a proceeding such as.

Privy Council Judgments.

Feb. 8,

His views as to Holy Scripture.

the present, be held responsible for more than the concln-' sions which are directly involved in the assertion he has made.

With these general remarks we proceed to consider, in the first place, the Charges against Dr. WilUains.

All the Charges against Dr.'' Williams were rejected by the learned" Judge in the Court below, or given up at the hearing before us, except the Charges contained in the 7th and 15th Articles.

The 7th Article, as reformed, sets forth certain passages extracted from pages 60 and 61, and from pages 76 and 78, of the volume containing Dr. WilUanns' Essay, and charges that in the passages so extracted Dr. Williams has advisedly maintained and affirmed that the Bible, or Holy Scripture, is an expression of devout reason, and the written voice of the congregation — not the Word of God, nor containing any special revelation of His truth, or of His dealings with mankind, nor the rule of our faith. Dr. Williams has nowhere in terms asserted that Holy Scripture is not the Word of God ; and the accusation, therefore, must mean that by calling the Bible ' an expression of devout reason, and therefore to be read with reason in freedom,' and stating that it is ' the written voice of the congregation,' Dr. WilliaTns must be taken to affirm that it is not the Word of God.

Before we examine the meaning of these expressions it is right to observe what Dr. Williams has said on the subject of Holy Scripture in the second of the passages included in this Charge. Dr. Williams there refers to the teaching of the Church in her Ordination Service as to the abiding influence of ' the Eternal Spirit,' and then uses these words:— 'If such a Spirit did not dwell in the Church, the Bible would not be inspired ; ' and, again, ' The Sacred Writers acknowledge themselves men of like passions with ourselves, and we are promised illumination from the Spirit that dwelt in them.' Dr. Williams may not unreasonably contend that the first

result of these passages would be thus given : ' The Bible

was inspired by the Holy Spirit that has ever dwelt and

PHvij Council Judgments. 97

still dwells in the Churcti, which dwelt also in the Sacred Feb. 8, Writers of Holy Scripture, and which will aid and illnmi- ^_^- nate the minds of those who read Holy Scripture trusting Williams to receive the guidance and assistance of thai Spirit.' bishop op

The words that the Bihle is ' an expression of devput ® 'Ind"*" reason, and therefore to be read with reason in freedom,' ° are treated in the Charge as equivalent to these words : — fendall. The Bible is the composition or work of devout or pious "'°"*" - men, and nothing more ; but such a meaning ought not to opinion of be ascribed to the words of a writer who, a few lines further tSereo"' on, has plainly affirmed that the Holy Spirit dwelt in the Sacred Writers of the Bible. This context enables us to say that the words ' an expression of devout reason, and therefore to be read with reason in freedom,' ought not to be taken in the sense ascribed to them by the accusation. In like manner we deem it unnecessary to put any interpretation on the words ' written voice of the congregation,' inasmuch as we are satisfied that whatever may be the meaning of the passages included in this Article, they do not, taken collectively, warrant the Charge which has been made that Dr. Williams has maintained the Bible not to be the Word of God, nor the B,ule of Paith.

We pass on to the remaining Charge against Dr. Williams, ^is aiiegoii

which IS contained m the fifteenth Article of Charge. The jnstiactttiou. words of Dr. Williams, which are included in this Charge, are part of a supposed defence of Baron Bimsen against the accusation of not being a Christian. It would ^e a severe thing to treat language used by an imaginary Advocate as advised speaking or teaching by Dr. Williams. Against such a general charge as that of not being a Christian, topics of defence may be properly urged, although not in conformity with the doctrines of the Church of iEnglamd. But, even if Dr. Williams be taken to approve of the arguments which he uses for this supposed defence, it would, we think, be unjust to him to take his words as a full statement of his own belief or teaching on the subjec of justification.

■ H

Privy Council Judgments.

Eeb. 8,

Charges against Mr. Wilson.

His Tiewg as to Holy Scripture.

eous before God only for the merits of our Lord and Saviour Jesus Christ, by faith, and not for our own works or deserv- ings.' The Article is wholly silent as to the merits of Jesus Christ being transferred to us. It asserts only that we are justified for the merits of our Saviour by faith, and by faith alone. We cannot say, therefore, that it is penal in a Clergyman to speak of merit by transfer as a fiction, however unseemly that word may be, when used in connection with such a subject.

It is fair, however, to Dr. Williams to observe that, in the argument at the bar, he repudiated the interpretation which had been put on these words, that ' the doctrine of merit by transfer is a fiction,' and he explained fiction, as intended by him, to describe the phantasy in the mind of an individual, that lie has received or enjoyed merit by transfer. Upon the whole we cannot accept the interpretation charged by the Promoter as the true meaning of the passages included in the fifteenth Article of Charge, nor can we consider these passages as warranting the specific Charge, which, in efiect, is that Dr. Williams asserts that justification by Faith means only the peace of .mind, or sense of Divine approval which comes of trust in a righteous God. This is not the assertion of Dr. Williams. We are, therefore, of opinion that the judgment against Dr. Willia/ms must be reversed.

We proceed to consider the Charges against Mr. Wilscm.

These have been reduced to the eighth and fourteenth Articles of Charge. The other Articles of Charge were either rejected by the Court below, or have been aban- cloned at the hearing before this Tribunal.

In the eighth Article of Charge an extract of some length is made from Mr. Wilson's Essay, and the accusation is, that in the passage extracted Mr. Wilscm has declared, and affirmed in eflfect, that the Scriptures of the Old and New Testaments were not written under the inspiration of the Holy Spirit, and that they were not necessarily at all, and certainly not in parts, the Word of God ; and then reference is made to the sixth and twentieth Articles of Religion, to part of the Nicene Creed, and to a passage in the Ordination of Priests in the Book of Common Prayer.

Privy Council Judgments. 99

This Charge involves, therefore, the proposition ' That Feb. 8, it is a contradiction of the doctrine laid down in the sixth ^^^*-

and twentieth Articles of Religion, in the Nicene Creed, Wiluaws

and in the Ordination Service of Priests, to affirm that any bishop or

part of the Canonical Books of the Old or New Testament, ®*"na""'' upon any subject whatever, however unconnected with reli- '^'^''^

gious faith or moral duty, was not written under the inspirafendali,.

tion of the Holy Spirit. Jndgment^

The proposition or assertion that every part of the Scriptures was written under the inspiration of the Holy Spirit is not to be found either in the Articles or in any of the Formularies of the Church. But in the sixth Article it is said that ' Holy Scripture containeth all things necessary to salvation,' and the Books of the Old and New Testa- m.ent are therein termed Canonical. In the twentieth Ar- tide the Scriptures are referred to as ' Grod's Word written ; ' in the Ordination Service, when the Bible is given by the Bishop to the Priest, it is put into his hands with these words, ' Take thou authority to preach the Word of God ; ' and in the Nicene Creed are the words, ' the Holy G-host, who spake by the Prophets.'

We are confined by the Article of Charge to the consideration of these materials, and the question is, whether in them thp Church has affirmed that every part of every Book of Scripture was written under the inspiration of the Holy Spirit, and is the Word of God.

Certainly this doctrine is not involved in the statement of the sixth Article, that 'Holy Scripture containeth all things necessary to salvation.' But inasmuch as it doth so from the revelations of the Holy Spirit, the Bible may well be denominated ' Holy,' and said to be ' the Word of God,' ' God's Word written,' or ' Holy Writ ; ' terms which cannot be affirmed to be clearly predicated of every statement and representation contained in every part of the Old and New Testaments.

The framers of the Articles have not used the word Opinion oi ' inspiration ' as applied to the Holy Scriptures ; nor have thereon.' they laid down anything as to the nature, extent, or limits of that operation of the Holy Spirit. The caution

100 Privy Council Judgments.

Feb. 8, of the framers of our Articles forbids our treating their

1864. language as implying more than is expressed ; nor are we

Williams warranted in ascribing to them conclusions expressed in

new forms of words inyolving minute and subtle matters of

controversy.

After an anxious consideration of the subject, we find ourselves unable to say that the passages extracted from Mr. Wilson's Essay, and which form the subject of this Article of Charge, are contradicted by, or plainly inconsistent with, the Articles and Formularies to which the Charge refers, and which alone we are at liberty to discuss. We proceed to the remaining Charge against Mr, Wilson ; namely, that contained in the fourteenth Article. His view o£ The Charge is, that in the portion of his Essay which is punisiimeiit. ^^t out in this Article, Mr. Wilson has advisedly declared and affirmed in effect that after this life, and at the end of the existing order of things on this earth, there wiU be no judgment of God, awarding to those men whom He shall then approve everlasting life, or eternal happiness, and to those men whom He shall then condemn everlssting death, or eternal misery ; and this position is aflSrmed to be contrary to the three Creeds, the Absolution, the Catechism, and the Barial and Commination Services.

In the first place we find nothing in the passages extracted which in any respect questions or denies that at the end of the world there will be a judgment of God, awarding to those men whom He shall approve everlasting life, or eternal happiness ; but with respect to a judgment of eternal misery, a hope is encouraged by Mr. Wilson that this may not be the purpose of God. Limits of We think that it is not competent to a Clergyman of the

tids'pSn™ Church of England to teach or suggest that a hope may be entertained of a state of things contrary to what the Church expressly teaches or declares will be the case ; but the Charge is that Mr. Wilson advisedly declares that after this life there will be no judgment of God, awarding either eternal happiness or eternal misery — an accusation which is not warranted by the passage extracted, Mr. Wilson expresses a hope that at the Day of Judgment those men

Privy Council JudgmenU, 101

wio are not admitted to happiness may be so dealt witt as I'eb. S,

that ' the perverted may be restored,' and all, ' both small ^^'''''^

and great, may ultimately find refage in the bosom of the 'Williams

Universal Parent.' The hope that the punishment of the bishop ov

wicked may not endure to all eternity is certainly not at ''^"nT"*

variance with anything that is found in the Apostles' Creed, Wilson-

or the Nicene Creed, or in the Absolution, which forms part PExcALr,. of the Morning and Evening Prayer, or in the Burial Ser-

vice. In the Catechism the child is taught that, in repeating the Lord's Prayer, he prays unto Grod ' that He ■will keep us from all sin and wickedness, and from our ghostly enemy, and from everlasting death ;' but this exposition of the Lord's Prayer cannot be taken as necessarily declaring anything touching the eternity of punishment after the Resurrection,

There remains the Commination Service and the Atlin- naslan Creed. The material passage in the Commination Service is in these words : — ' terrible voice of most just judgment, which shall be pronounced upon them, when it shall be said unto them, " Go, ye cursed, into the fire everlasting which is prepared for the Devil and his angels." ' In like nsanner the Athanasian Creed declares that they who have done evil shall go into everlasting fire. Of the meaning of these words ' everlasting fire,' no interpretation is given in the Formularies which are referred to in the Charge. Mr. Wilson has urged in hie defence, that the word ' everlasting ' in. the English translation of the New Testament, and of the Creed «f St. Athanasius, must be subject to the same limited interpretation which some learned men have given to the original words which are translated by the English word ' everlasting,' and he has also appealed to the liberty of opinion which has always existed without restraint among very enainent English Divines upon this subject.

It is material to observe that in the Articles of King Bearing on Edward , YL, framed in 1552, the forty-second Article was ot 42nti'' in the following words : — ' All men shall not bee saved *'"'''- at the length. — Thei also are worthie 6f condemnation who indevoure at this time to restore the dangerouse opinion,

102 Privy Council Judgments.

Fel). 8, that al menne, be thei never so ungodlie, shall at lengttt bee saved, when thei have suffered paines for their sinnes a Williams Certain time appdincted by God's justice.'

This Article was omitted from the Thirty-nine Articles of Religion of the year 1562, and it might be said that the effect of sustaining the judgmenlf of the Court below on this Charge, would be to restore the Article so withdrawn.

We are not required, or at liberty, to express any opinion upon the mysterious question of the eternity of final punishment, further than to say that we do not find in the Formularies, to which this Article refers, any snch distinct declaration of our Church upon the subject, as to require us to condemn as penal the expression of hope by a Clergyman that even the ultimate pardon of the wicked, who are condemned in the day of judgment, may bfe consistent with the will of Almighty Grod, No opinion We desire to repeat that the meagre and disjointed ex- to to'cBo(S tracts, which Lve been allowed to remain in the reformed iews*""* -Articles, are alone the subject of our judgment. On the design and general tendency of the book called ' Essays and Reviews,' and on the effect or aim of the whole Essay of Dr. Williams, or the whole Essay of Mr. Wihon, we neither can, nor do pronounce any opinion. On the short extracts before us our judgment is, that the Charges are not proved. Ruiiiiff as to Their Lordships, therefore, will humbly recommend to her Majesty that the sentences be reversed, and the reformed Articles rejected in like manner as the rest of the original Articles were rejected in the Court below — namely, without costs — but inasmuch as the Appellants have been obliged to come to this Court, their Lordships think it right that they should have the costs of this appeal.

T am desired by the Archbishop of Ganterbury and the Archbishop of Yorh, to state that they do not concur in those parts of this judgment which relate to the seventh Article of Charge against Dr. Williams, and to the eighth Article of Charge against Mr. Wilson.

\_For note on this case see Apjiendix, Note D.]

cost

Hebbert v. Purchas (1871)

HENRY HEBBERT .... Appellant;

AND

The rev. JOHN PURCHAS . . Respondent.*

(Fwrther Proceedings.)

After judgment had been delivered by the Judicial Committee, but before their report and recommendation had been presented, or any order made thereon by Her Majesty in Council, the Respondent presented two Petitions addressed to Her Majesty in Council, stating that the appeal had been heard ex parte by reason of his want of pecuniary means to employ counsel, and his own inability to argue the case ; and that (as he alleged) the judgment of the Judicial Committee in the appeal was at variance with former decisions of the Judicial Committee ; he prayed for a rehearing of the appeal, and that no report or recommendation might be made thereon to Her Majesty until such rehearing had been had. Both Petitions having been specially referred by Her Majesty to the Judicial Committee, their Lordships, after hearing counsel, declined to entertain the matter of the Petitions, or to allow any doubt to be thrown on the flnahty of the decisions of the Judicial Committee ; and dismissed the Petitions with costs.

March 25, BEFORE the report of the opinion and judgment of their

' Lordships in the above appeal had been presented to Her

Majesty in Council, or any Order made in accordance with

the advice and recommendation of their Lordships' judg-

* Present : The Lord Chanoellor (Lord Hatherley) ; the Bishop of London (Dr. Jackson) ; Lord Chelmsford, Lord Westbury, Lord Cairns, and Sir James William Colvile.

Privy Council Judgments. 201

ment, a Petition, dated Maroh 16, 1871, was presented by '_- the Respondent, addressed to Her Majesty in Council, hbbbbbt "which staied that the Petitioner was disabled, by want of pchchas. necessary pecnniary means, from incurring the expense of Further pio- a defence by connsel, on the hearing such appeal ; and that 'U!!!: — . the state of his health, and his own incompetency to cope with connsel, prevented him from venturing personally to undertake to sustain the judgment of the Dean of the Arches ; that the appeal was thus heard without any opposing arguments on the various important points raised ; and, therefore, that the repert of the Judicial Committee on those important points, from the necessity of the case, must be submitted to Her Majesty upon an ea; parte hearing only. That, as he stated, the result of these circumstances was, that the opinion of the Judicial Committee had been pronounced, with regard to the main particulars, in favour of the Appellant, in contradiction, as he, the Petitioner, was advised, in one essential point, to the decision of the Judicial Committee in the case of Westerton v. Liddell. That so grave were the consequences of the decision in the case to which the Petitioner was a party, and so deep and painful an interest had, as he submitted, it excited amongst a very large body of clergy and laity of the Church of Unglcmd, that, being now unexpectedly enabled to take upon himself the expense of employing counsel on his behalf, which at the time of the hearing he was unable to do, and being, as he alleged, most anxious for the sake of himself and others that a fnll and complete discussion should be had of the several points raised by the appeal, he prayed that Her Majesty would not adopt the recommendation of the Lords of the Judicial Committee in the case, until an opportunity had been afforded to the Petitioner of having the case reheard, in order that . he might be duly represented by counsel upon such rehearing, and a fall and satisfactory discussion might be had on the several points raised by the appeal.

On March 17, 1871, an appearance for the first time was entered on behalf of the Respondent, in Her Majesty's Court of Appeal, in the original appeal.

202 Privy Council Judgments.

1871. This Petition having been set down for hearing before

Hebeeet t^6 Judicial Committee, notice was issued from the Privy PuBCHAs. Council Office for the Petitioner to appear before the Oom- ihirtiier pro- ' mittee, as upon the hearing of an ordinary petition.

ceedings. ,t

The SoUcitor-General (Sir John D. Coleridge, Q.C.), with whom was Mr. G. Bowen, on behalf of the Petitioner,

Took a preliminary objection to the competency of the Court to entertain the Petition. He submitted that the Petition was not a Petition in the appeal addressed to the Judicial Committee, but a Petition for a rehearing addressed to the Queen in Council, and that unless such Petition was referred by Her Majesty to their Lordships by a special Order in Council, in accordance with the provisions of the Judicial Committee Act, 3 and 4 Will. IV., c. 41, sec. 4., the Judicial Committee, being only a Statutory Court, had no authority, and that the case was, in fact, as regarded the Tribunal then sitting, coram, nonjvdioe. He submitted that the Petition being addressed to the Queen in Council, was not a proceeding in the appeal then lately before the Judicial Committee, so as to bring it within the provisions of the Statute, 7 and 8 Vict'., c. 69, s. 9, and obviate a special reference ; that the Petition for a rehearing having been presented to Her Majesty in Council, involved an appeal, not to the Judicial Committee against their own report or judgment, but to the discretion and prerogative of the .Crown. He further submitted that Her Majesty, if so advised, might refer the Petition to this or any other section of the Judicial Committee, but until such reference had been specially made, the Judicial Committee could have authority to proceed, or take cognisance of the matter of the Petition, and advise Her Majesty, under the circumstances, that a farther hearing ought or ought not to take place.

The LoED Chancelloe intimated the opinion of their Lordships, that, as it was insisted there was no Petition

Privy Council Judgments. 203

for a rehearing before them, it was unnecessary further 1871. to discuss the matter. h^^t

On March 29, 1871, Mr. Pwrchas presented another Ptoohab. Petition to Her Majesty in Council, in which he stated, in ceedings-^™" effect, that he had, at "the hearing of the last Petition, for ' '

the first time discovered that no special Order had been made by Her Majesty referring his Petition for a rehearing of his original appeal to the Judicial Committee ; that he was advised by counsel, that to proceed with any motion before the Judicial Committee until a special Order of reference had been made by Her Majesty in Council in the matter of his Petition, might be to his prejudice ; that accordingly no motion for a rehearing was made on the day named in the aforesaid notice, the Petitioner's counsel informing their Lordships of the reasons why it was thought necessary to abstain from any such motion ; and the Petitioner urged in favour of the rehearing of his case the grounds before stated by him ; and further, that if the draft report or recommendation, as delivered and proposed, by the Committee, were made and adopted by Her Majesty,, the Petitioner would be condemned in a criminal suit with heavy costs for doing what, he was prepared to submit, was not illegal ; and he prayed, in effect, that the appeal of Hebbert v. Purohas might be reheard before the Judicial Committee, and that until such rehearing had been had, their Lordships might abstain from making to Her Majesty any report or recommendation in the matter of the appeal,, or any report thereof be received or adopted by Her Majesty ; and that he might be heard by counsel upon the matter of both Petitions presented by him.

This Petition, together with the former one of March 15, April 26, 1871, having been specially deferred by Her Majesty to the ^®^^- Judicial Committee to report thereon, now came on for hearing.*

* Present : The Lord Chancellor (Lord Hatherley) ; the Archbishop of York (i)r. Thomson) ; the Bishop of London (Dr. Jackson) ; Lord Chelmsford^ Lord Westbury, Lord Cairns, Sir James "William Colvile, the Lord Justice James, and the Lord Justice Mellish.

Privy Council Judgments.

Hebbbbt

The Solicitor-General (Sir John D. Coleridge,- Q.C.), and Mr. C. Bowmk, in support of the application.

The opinion and judgment of the Judicial Committee on an appeal referred to them, is not necessarily a final judgment ; it is competent, we apprehend, to the Committee to reconsider the case, especially when no report or recommendation has been made thereon to Her Majesty in Council. The Judicial Committee is constituted, and its jurisdiction defined, by Statute, 3 and 4 Will. IV., c. 41, which limits the power of the Committee simply to advising the Crown. By the 2 and 3 WUl. IV., c 92, s. 2, the High Court of Delegates was abolished and its powers transferred to the Qraeen in Council. The 3rd section declares, ' that every judgment, order, and decree to be made by the King's Majesty, his heirs and successors, shall have such and the like force and effect in all respects whatsoever as the same respectively would have had if made and pronounced by the High Court of Delegates ; and that every such judgment, order, and decree shall be final and definitive, and no Commission shall thereafter be granted or authorised to review any judgment or decree to be made by virtue of that Act.' That Statute, and the Privy Council Act, 3 and 4 Will. IV., c. 41, are m curi materia, and to be taken in relation with the Statutes for restraint of appeals, 24 Hen. VIII., c. 12, and 25 Sen. Vin., c. 19, ss. 1, 2, 3. The Statutes, 24 Een. VIII., . 12, and 25 Hen. VIII., a 19, were, in part, repealed by the 1 and 2 P. and M., c. 8, s. 11, but the subsequent Statute, 8 EKz., c. 6, ' For avoiding tedious suits in-civil and marine causes,' enacts, ' that aU and every such judgment and sentence definitive as shall be given or pronounced by any Civil or Maritime Court upon appeal lawfully to be made thereon to the Queen's Majesty in Her Highness' Court of Chancery, by such Commissioners or Delegates, shall be final, and no further to be had or made from the said judgment or sentence definitive, or from the said Commissioners or Delegates, for or in the same • anv law, usage, or custom to the contrary notwithstandine '

Privy Council Judgments. 205

Although it declared that the sentence of the High CoTirt 1871. of Delegates is definitive, yet it is laid down by Odke, 4th hbt Inst., 135, and Bla. Com., vol. iii., p. 67, that the Crown pj may grant a Commission of Review notwithstanding the pther pro- Statutes, 25 Em. VIII., c. 19, and 8 Eliz., c. 5, declare the "'"f • sentence of the Court of Delegates is to be final. The practice of granting a Commission of Review was uniform till the abolition by 2 and 3 Will. IV., c. 92, of the High Court of Delegates. The necessity for a Commission of Adjuncts only arose when the Court of Delegates were equally divided in opinion : Rep. on the Prac. and Jur. of the Ecc. Courts, 1832, p. 21. As neither the Statutes, 3 and 4 Will. IV., c. 41, 3 and 4 Vict, c. 86, and 6 and 7 Vict., c. 38, affected the prerogative of the Crown, we submit, that the same prerogative and power to issue a Commission of Review of a judgment of the Judicial Committee exist now in the Crown as it had before the Statute, 2 and 3 Will. rV., c. 92, from the sentence of the High Court of Delegates, and that the Statute, 3 and 4 Will. IV., c. 41, enables Her Majesty to refer this case to the same Committee, or, if need be, to a new Committee. [Lord Cairns That proposition involves this consequence, that the Judicial Committee would have three ftmctions to discharge — to advise the Sovereign ; to advise whether Her Majesty in Council should send its recommendation back for reconsideration ; and then, if it so advised, to again advise Her Majesty in Conncil after reconsideration.] A rehearing, even after an Order in Council confirming the report of the Judicial Committee, has been allowed. In this case we urge, and are prepared to argue, that conflicting judgments bearing on the subjects at issue have been pronounced by former members of this Tribunal, as in Westerton v. Liddell, and Ma/rUn v. MackonoeMe. On these grounds, and also as the hearing of the case was ex parte, we submit that a rehearing ought to be allowed, on the grounds — first, that the decisions are conflicting ; secondly, that the case was heard expiwte, as the Petitioner did not appear at the hearing for want of funds ; and, lastly, on public expediency, as the conscience of a large

206 Privy Council Judgments. ' '

1871. number of the Clergy of the Church oi England was un- Hm^T settled by the decision. If no rehearing is -possible, the „ "■ decision will be final, unless set aside by Act of Par-

PORCHAS. ^ ' '^

•Further proliament.

ceedings. *>

Mr. A. J. Stephens, Q.C., and Mr. T. B. Archibald, for the Appellant, contra : —

The Statute, 2 and 3 Will. IV., c. 92, sec. 2, transferred the powers of the High Court of Delegates to the Queen in Council, and also abolished the Commission of Review. In the Report of the Ecclesiastical Commissioners of 1832, p. 20, it is expressly stated, that from the decision of the High Court of Delegates no further appeal lies as a matter of right, and that although the unsuccessful party might present a petition to His Majesty in Council for a Commission of Review, yet that it was very rarely that the facts of a case warranted the exercise of the royal prerogative. By the Statute, 3 and 4 Will. TV., c. 41, this Tribunal is constituted the ultimate Court of Appeal in ecclesiastical causes, having the same authority and jurisdiction as was possessed by the Court of Delegates, except the power of granting a Commission of Review, which is expressly taken away by 2 and 3 Will. TV., c. 92, sec. 3. The object of these Petitions is to resuscitate the old Commission of Review, which proved so pernicious in its working and results as to lead to its positive abolition by Statute. The Judicial Committee is, by Statute, a Court of Law fully constituted, and capable of enforcing an Order in Council made on an appeal, and punishing for contempt. Even if a rehearing was granted, and judgment given in favour of the Petitioner, the inevitable consequence would be that the Appellant would then have a right to present a Petition to the Queen in Council urging that conflicting judgments had been given, and, therefore, that it was necessary to rehear the case again. To allow a rehearing of a judgment of the Appellate Court upon a question of Church doctrine solemnly decided, would be most mischievous. The judgment is in conformity with the prin-

Privy Council Judgments. 207

ciples laid do-wn in Westertcm v. Liddell and Ma/rtm v. 1871. MaokonocUe. h^et

The Lord Chancellob : — oeedmgs.

Their Lordships are of opinion, in respect of the two Petitions addressed to the Crown, that no farther prooeed- ihgs shonld be taken therein. Having carefully weighed the arguments, and considering the great public mischief which would arise on any doubt being thrown on the finality of the decisions of the Judicial Committee, their Lordships are of opinion, that expediency requires that the prayer of the Petitions should not be acceded to, and that they shonld be refused with costs.

Three separate Orders were made by Her Majesty in Council on May 16, 1871, upon the Appeal and the two Petitions.

The Order in Council made on the first and principal Appeal set forth, ~that their Lordships had ' agreed humbly to report to Her Majesty their opinion in favour of the said Appeal ; that the Decree or Order appealed from ought to be amended to the extent thereidafter mentioned ; that the principal cause ought to be retained, and therein that, in addition to the matters in respect of which the said John Furchas was by the Decree appealed from pronounced to have ofiended, and from the use of or sanctioning the use of which he was thereby admonished to abstain, he, the said John Pv/rchas, ought to be pronounced to have ofiended against the Statute Law and the Constitutions and Canons Ecclesiastical of the realm by himself using and wearing a Vestment called a Chasuble while of&ciating in the Communion Service, and in the administration of the Holy Communion in the said church or chapel of St. James, at Brighton; and by sanctioning and authorising, whilst present, and responsible for the due performance of Divine Service, the wearing of a Chasuble by other Clergy, men whilst officiating in the Communion Service, and in the administration of the Holy Communion in the said

208 Privy Council Judgments.

1871. church or chapel ; and by himself wearing, -when officiating

Pheohas ^y causing or suffering other Clergy officiating or assisting

Further pro-at the Communion Service, in his presence, to wear certain

oeedings. ' jr »

• » ' Vestments called Tunics, OJunicles, and Albs; and by administering wine mixed with water, instead of wine, to the commxinicants at the Lord's Supper ; and by the use in the said church or chapel, in the administration of the Holy Communion, of wafer-bread instead of bread such as is usual to be eaten ; and by standing in the said church or chap'el with his back to the people, between the people and the Holy Table, whilst reading the Prayer of Consecration in the Holy Communion ; and that he, the said John Pv/rohas, ought to be admonished to abstain from the use of, or sanctioning the use of, the rites, ceremonies, acts, observances, matters or things, as well those in which he has been pronounced by the aforesaid Decree of the Court below to have offended, as those in which their Lordships did report that he had also offended ; and that a Monition admonishing him accordingly ought to be issued out of the Seal of Her Majesty in ecelesiasjical and maritime causes; and further, that he, the said John Pv/rohas, ought to be condemned in all the costs incurred in the said cause in the Court below on behalf of the said Charles Jomies Elphmstone, and also in the costs incurred in the said appeal on his behalf, and on behalf of the said Henry Heilert, save those incurred in the application of the said Hemry Mehiert to be admitted and substituted as Promoter in the said appeal, in respect of which no Order was made.'

By the Order in Council made on the two Petitions of rehearing, it was ordered, ' that the Petition of the said John Pwrehas ought not to be granted, and that no further steps ought to be taken in regard thereto.'

THOMAS BTARD SHBPPARD . Appellant;